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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


By  JAMES  A.  WOODBURN 
The  American  Republic  and  Its  Government 

An  Analysis  of  the  Government  of  the  United  States, 
with  a  Consideration  of  its  Fundamental  Principles 
and  of  its  Relations  to  the  States  and  Territories.     8°. 

Political  Parties  and  Party  Problems  in  the  United 
States 

A  Sketch  of  American  Party  History  and  of  the  De- 
velopment and  Operations  of  Party  Machinery,  to- 
gether with  a  Consideration  of  Certain  Party  Problems 
in  their  Relations  to  Political  Morality.     8°. 

American  Orations 

Edited  by  Alexander  Johns  ton.  Re-edited,  with  new 
Material  and  Historical  Notes,  by  J.  A.  Woodburn. 
Four  volumes.     Sold  separately.      12°.     Each,  $1.25. 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  LONDON 


AMERICAN  POLITICS 


THE  AMERICAN  REPUBLIC 
AND  ITS  GOVERNMENT 


AN    ANALYSIS   OF  THE   GOVERNMENT   OF  THE  UNITED  STATES 

WITH  A  CONSIDERATION  OF  ITS  FUNDAMENTAL 

PRINCIPLES  AND  OF  ITS  RELATIONS  TO 

THE  STATES  AND  TERRITORIES 


BY 


JAMES  ALBERTtWOODBURN 

PROFESSOR  OF   AMERICAN   HISTORY  AND  POLITICS 
INDIANA    UNIVERSITY 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  AND  LONDON 

Gbe  fmtcfcerbocfcer  press 
1903 


Copyright,  1903 

BY 

JAMES  ALBERT  WOODBURN 
Published,  February,  1903 


Ube  tmlcfcerbocfcec  press.  View  Both 


PREFACE 

oJT  is  the  purpose  of  this  book  and  of  its  companion  vol- 

u3     ume,  Political  Parties  and  Party  Problems  in  the  United 

^.States,  to  attempt  an  addition  to  the  works  designed  for  the 

Scencouragement  of  the  study  of  American  politics.     This 

Hvolume  has  to  do  with  the  original  principles  of  the  Re- 

"*  public  as  announced  by  the  Fathers  in  the  struggle  for 

Independence,   and  with  the  principal  institutions  and 

organs  of  government  created  by  the  Constitution. 

The  greater  part  of  this  field  has  been  traversed  by 
many  writers,  and  its  principal  subjects  are  treated  of  by 
all  text-books  on  Civil  Government.     Most  of  the  text- 
books in  Civics,  however,  have  been,  at  least  until  very 
recently,  class-room  hand-books  dealing  very  briefly  and 
y  disconnectedly  with  a  large  variety   of  topics,   and  de- 
^  signed  for  young  students  in  the  first  year  of  the  high 
£  school,  or  below.     Mr.  Bryce's  great  work,  The  American 
Commonwealth,  has  done  much  during  the  last  decade  for 
the  promotion  of  political  education  among  American 
students  and  readers;  and  in  our  institutions  of  higher 
learning,  where  elective  courses  of  considerable  length  are 
offered  in  political  science  and  the  study  of  the  American 
Government,  it  has  been  indispensable,  as  it  will  prob- 
ably continue  to  be  in  its  special  field  for  a  generation  to 
come.     I  wish  to  acknowledge  my  great  indebtedness  to 
§§Mr.  Bryce  for  the  constant  use  of  his  work  in  the  class- 
oroom  as  well  as  in  the  preparation  of  this  work;  and  if  this 
^volume  should  do  anything  toward  promoting  a  larger 


£3 


*  i 


IV 


Preface 


use  of  The  American  Commonwealth  and  books  of  its 
kind — there  are  none  of  its  rank — among  high  schools, 
academies,  and  colleges,  it  will  not  have  been  published 
in  vain. 

With  a  view  to  this  larger  study  of  American  politics, 
and  as  leading  up  to  it,  it  seems  to  me  necessary  to  recog- 
nize that  between  the  field  for  the  elementary  text-books 
in  Civics  and  that  of  the  advanced  classes  in  the  universi- 
ties that  call  for  special  and  extensive  study  in  works  like 
that  of  Mr.  Bryce,  there  is  an  intermediate  field.  My 
effort  has  been  to  fill  this  gap,  to  provide  an  intermediate 
book  for  advanced  courses  in  high  schools  or  for  elemen- 
tary courses  in  the  colleges.  It  is  believed  that  in  this 
field  of  Civics  there  are  classes  of  students  well  prepared 
for  more  advanced  work  than  is  ordinarily  pursued  in 
high  schools,  whose  interest  will  be  more  easily  and 
effectively  aroused  and  sustained  by  a  somewhat  elaborate 
discussion  of  the  more  important  subjects  in  the  study 
of  the  American  Government  and  its  principles.  For 
this  purpose  it  seems  better  to  present  more  extensive 
treatment  of  fewer  subjects  than  to  reconsider  the  great 
variety  of  miscellaneous  topics  usually  contained  in  the 
books  on  elementary  Civics. 

It  is  one  of  the  first  purposes  of  public  education  in 
America  to  induce  the  youth  of  the  land  to  understand  the 
Constitution  of  their  country,  the  principles  that  underlie 
it,  how  it  has  grown,  the  perils  that  have  threatened  it, 
the  wisdom  and  courage  that  have  sustained  it  and  made 
it  great.  This  is  to  be  learned  chiefly  from  our  country's 
history.  It  is  a  field  of  reading  and  study  that  should  be 
inviting  to  all  American  citizens.  It  is  my  hope  that  this 
book  may  in  some  degree,  for  the  sake  of  a  higher  citi- 
zenship, promote  the  study  of  history,  politics,  and  the 
problems  of  government. 

Indiana  University,  Bloomington,  Indiana, 
January  20,  1903. 


CONTENTS 


CHAPTER  I 

PAGE 

The  Principles  of  the  Fathers  i 


CHAPTER  II 
The  Federal  Nation 47 

CHAPTER  III 
The  Presidency 94 

CHAPTER  IV 
The  Senate 196 

CHAPTER  V 
The  House  of  Representatives        ....     246 

CHAPTER  VI 
The  Judiciary 3r7 

CHAPTER  VII 
The  States  and  their  Government         .         .         .     342 

CHAPTER  VIII 
The  Territories  and  their  Government        .         .     362 
Index 399 


THE  AMERICAN  REPUBLIC 


CHAPTER   I 

THE   PRINCIPLES   OF   THE   FATHERS 

THE  great  text-book  for  the  study  of  politics  is  history. 
He  who  would  understand  the  principles  of  our 
Government  and  the  institutions  that  have  been  built 
upon  them  must  look  to  the  history  out  of  which  these 
principles  and  institutions  have  emerged.  Without  a 
knowledge  of  the  past  we  cannot  understand  the  present. 
In  1763,  after  a  half-century  of  conflict,  the  English 
had  triumphed  over  the  French  in  America.  Under  the 
treaties  of  that  year  closing  the  Seven  Years'  Causesofthe 
War,  the  French  retired  from  the  North  American 
American  continent,  and  the  English  rule  was 
established  in  Canada  and  in  the  territory  east  of  the 
Mississippi.  To  meet  the  increased  burden  of  an  in- 
creased debt  and  of  enlarged  possessions,  the  English 
Ministry  under  George  III.  resolved  upon  three  measures 
which  Mr.  Lecky,  the  great  English  historian,  has  said 
produced  the  American  Revolution  : 

1.  The  enforcement  of  the  old  trade  laws. 

2.  The  quartering  permanently  in  America  of  a  portion 
of  the  British  army. 

3.  The  raising  by  Parliamentary  taxation  in  America  of 
a  part  of  the  money  necessary  for  the  army's  support. 


2  The  American  Republic 

The  old  trade  laws,  which  had  been  passed  chiefly  in 
the  interest  of  the  English  trading  companies,  were  ob- 
^   r,    ,   w   noxious    and    vexatious   to  the  Colonies,   and 

The  English 

commercial    they  had  been  allowed  to  fall  into  disuse.      By 

Code  Violates     h  j  h       Colonies    were    not    allowed    to 

Sound 

principles  of  establish  manufactures  for  themselves,  nor  to 
Government.  carry  on  a  profitable  trade  with  other  coun- 
tries. The  English  commercial  code  thus  violated  the 
fundamental  principle  of  just  government,  that  laws 
should  be  in  the  interest  of  the  people  who  are  bound  to 
obey  them.  The  attempt  to  revive  and  strictly  to  en- 
force these  obsolete  laws  thus  became  a  contributing 
cause  of  the  American  Revolution :  and  in  so  far  as  the 
Americans  resisted  these  laws,  they  did  so  as  claiming  a 
right  to  freer  trade  and  freer  industry  ;  in  short,  as  assert- 
ing their  right  to  regulate  their  manufactures  and  com- 
merce in  their  own  interest. 

The  dread  of  a  standing  army  had  been  a  powerful  in- 
fluence with  the  common  people  of  England  ever  since 
.    their  struggle  against  the  tyranny  of  the  royal 

Opposition  to  oo  o  J  J  J 

a  standing  power  in  the  days  of  the  Commons'  revolt 
Army"  against  the    Stuart  kings,    1642-1649.     Espe- 

cially was  this  feeling  strong  among  those  English  Puri- 
tans and  Cavaliers  who  "in  an  unconquerable  spirit  had 
effected  settlements  in  the  distant  and  inhospitable  wilds 
of  America. "  They  held  with  a  stubborn  and  undaunted 
spirit  that  no  army  should  be  quartered  upon  them  except 
by  the  consent  of  their  own  legislatures.  Every  State 
or  colony — that  is,  every  organized  political  community 
like  Massachusetts,  Virginia,  or  Rhode  Island,  they  de- 
clared, "must  judge  for  itself  the  number  of  armed  men 
which  they  may  safely  trust  among  them,  of  whom  they 
are  to  consist,  and  under  what  restrictions  they  are  to  be 
laid."  '  Reliance  on  their  own  militia  and  opposition  to 
a  standing  army  larger  than   was  necessary  to   preserve 

1  Jefferson's  Summary  View  of  the  Rights  of  the  Colonies. 


The  Principles  of  the  Fathers  3 

the  peace  involved  one   of   the    early   principles    of  the 
Republic. 

But  it  was  especially  the  controversy  raised  by  the  new 
Imperial  policy  of  taxation  that  led  to  the  dismemberment 
of  the  British  Empire  and  to  the  independence  of  America. 
In  the  long  discussion  between  Great  Britain  and  the  Col- 
onies touching  Imperial  power  and  colonial  rights,  from 
the  passage  of  the  Stamp  Act  in  1765,  till  the  Declaration 
of  Independence  proclaimed  a  new  nation  to  the  world,  the 
colonists  stood  out  for  the  following  rights  and  principles : 

I.    The  right  of  constitutional  government. — Great  Brit- 
ain claimed,  while  the  colonists  denied,  that  Parliament 
could  exercise  an  unlimited  power  over  them, 
"to  bind  them  in  all  cases  whatsoever."     The       Wnstitu- 
colonists  had  no  voice,  and  from  the  nature  of  tional 

,1  u  1  •      ,1       1        i  .  Government. 

the  case  could  nave  none,  in  the  body  proposing 
so  to  govern  them.  The  great  remedial  measures  guar- 
anteeing the  ancient  rights  of  subjects,  such  as  the  Great 
Charter,  the  Habeas  Corpus,  the  Bill  of  Rights, — that  is, 
the  law,  customs,  precedents,  and  constitutional  statutes 
which  made  up  the  British  Constitution, — were  in  full 
force  in  the  Colonies.  By  this  Constitution  Parliament 
must  be  bound.  The  colonists  held  that  their  charters 
also  conferred  and  defined  certain  constitutional  rights 
and  limited  the  powers  of  government  over  them.  Eng- 
lish law  and  liberty,  they  claimed,  knew  no  such  thing  as 
absolute,  unlimited  power,  without  constitutional  limita- 
tions and  restraints.  The  colonists  contended  not  for 
new  rights  but  for  old  ones,  not  for  innovations  or  a  new 
constitution,  but  for  their  old  charters  and  the  old  Consti- 
tution with  its  privileges  and  guarantees.  They  had  lost 
none  of  their  rights  by  migration.  Whatever  were  the 
constitutional  rights  of  Englishmen  at  home  were  the  con- 
stitutional rights  of  Englishmen  in  the  Colonies.  With 
our  fathers,  wherever  they  went  throughout  the  world, 
their  Constitution  and  their  law  followed  their  flag. 


4  The  American  Republic 

"  All  we  have  of  freedom,  all  we  used  or  know, 
This  our  fathers  bought  for  us,  long  and  long  ago; 
Ancient  Right  unnoticed  as  the  breath  we  draw, 
Leave  to  live  by  no  man's  leave  underneath  the  law."  ' 

2.    The  right  of  local  self-government. — To  the  colonists 

this  was  a  necessary  corollary  to  the  rights  of  constitu- 

,  tional  government.    The  foundation  of  English 

The  Right  of  °  . 

Local  self-  liberty  and  of  all  free  government  is  the  right 
Government.  of  a  people  to  participate  in  their  legislative 
council.  This  meant,  in  1776,  the  free  and  exclusive 
power  of  legislation  in  the  colonial  assemblies, — in  all 
cases  of  taxation  and  internal  policy.2  The  colonists 
held  that,  while  matters  of  Imperial  concern,  and  espe- 
cially the  commercial  system,  should  remain  under  the 
control  of  the  Imperial  Parliament,  each  Colony  should 
regulate  for  itself  its  own  local  affairs ;  that  the  colonial 
assemblies  were  complete  and  independent  legislatures 
for  all  matters  of  internal  concern.  Each  Colony  was 
"a  people."  In  the  exercise  of  this  right  of  local  self- 
government, 

"  the  Colonial  legislatures  with  the  entire  assent  of  the  Home 
Government  assumed  the  right  of  modifying  almost  every  por- 
tion of  the  common  and  of  the  statute  law,  with  a  view  to  their 
special  circumstances.  It  became  recognized  that  the  Colonies 
might  legislate  for  themselves  as  they  pleased,  provided  they  left 
untouched  their  allegiance  to  the  Crown  and  acts  of  the  Eng- 
lish Parliament."  3 

In  internal  matters  they  claimed  therefore  not  to  be 
under  the  jurisdiction  of  the  British  Parliament,  and  that 
they  did  not  hold  their  political  existence  at  the  will  of 
that   body;  that  the  rights — original  and  chartered  and 

1  Kipling,   The  King. 

5  Resolution  of  the  Continental  Congress,  October  24,  1774. 

3  Lecky,  American  Revohition,  p.  39. 


The  Principles  of  the  Fathers  5 

guaranteed — of  one  part  of  the  Empire  should  not  be 
sacrificed  to  the  desire  and  power  of  another  part,  and 
that  one  legislature,  like  that  of  Great  Britain,  should  not 
be  allowed  to  infringe  upon  the  rights  and  liberties  of 
another  legislature,  like  that  of  Virginia  or  of  New  York. 
Therefore,  it  was  held,  when  Parliament  attempted  to 
suspend  the  legislature  of  New  York  for  refusing  com- 
pliance with  the  Mutiny  Act  of  1765,  quartering  troops 
in  America,  that  "one  free  and  independent  legislature 
had  taken  upon  itself  to  suspend  the  power  of  another, 
free  and  independent  as  itself."1  It  was  the  right  of 
every  State  to  govern  itself  within  its  own  local  rights 
and  limits.  The  colonists  declared  the  taxing  and  co- 
ercive acts  of  Parliament  void,  because  by  the  principles 
of  the  English  Constitution  and  by  colonial  charters 
Parliament  had  no  right  to  exercise  such  authority  within 
these  Colonies.  For  these  reasons  the  suspension  of 
their  legislatures  was  held  to  be  an  act  of  usurpation  and 
tyranny,  and  in  case  of  continued  suspension  the  powers 
of  these  bodies  reverted  to  the  people ;  and  the  colonists 
believed  that  to  make  their  judges  and  governors  inde- 
pendent of  their  assemblies,  and  dependent  merely  on  the 
royal  will  and  favor  for  their  tenures  and  their  salaries, 
was  an  interference  with  the  right  of  self-government. 
States'  rights,  as  against  Imperial  or  central  authority,  in 
all  matters  of  domestic  concern,  was  an  original  and  primi- 
tive principle  in  the  history  of  the  United  States. 

3.  The  right  of  trial  by  a  jury  of  the  vicinage. — The 
courts  of  admiralty  had  been  empowered  to  try  violations 
of  the  Stamp  Act  and  other  acts  enforcing  the  TheRightof 
trade  laws.  In  these  courts  a  jury  trial  was  Trial  by 
denied.  And,  also,  as  a  means  of  meeting 
colonial  resistance,  an  old  law  of  the  time  of  Henry  VIII. 
was  revived  which  empowered  a  colonial  governor  to  bring 
to  England  for  trial  persons  accused  of  treason  outside  of 

1  Jefferson's  Summary  View  of  the  Rights  of  America. 


6  The  American  Republic 

England,  "transporting  them  beyond  seas  to  be  tried  for 
pretended  offenses."  ' 

"By  this  act,"  says  Burke,  "  almost  all  that  is  substantial 
and  beneficial  in  a  trial  by  jury  is  taken  away  from  a  subject  in 
the  Colonies.  To  try  a  man  under  that  act  is,  in  effect,  to 
condemn  him  unheard.  A  person  is  brought  hither  in  the 
dungeon  of  a  ship's  hold;  thence  he  is  vomited  into  a  dun- 
geon on  land,  loaded  with  irons,  unfurnished  with  money,  un- 
supported by  friends,  three  thousand  miles  from  all  means  of 
calling  upon  or  confronting  evidence,  where  no  one  local  cir- 
cumstance that  tends  to  detect  perjury  can  possibly  be  judged 
of, — such  a  person  may  be  executed  according  to  form,  but  he 
can  never  be  tried  according  to  justice."  2 

To  this  violation  of  one  of  the  dearest  rights  of  English- 
men, the  colonists  set  themselves  in  determined  resistance. 
4.  The  right  of  free  assembly  and  the  right  of  petition. 
— The  right  of  petition  was  repeatedly  exercised  without 
The  Rights  restraint,  though  the  colonial  petitions  were  as 
of  Free  repeatedly  slighted  and  disregarded.     The  right 

Assembly  r  ,   1  1   r  1  •  • 

and  of  of  assembly  and  free  discussion,    a  right  formid- 

Petition.  a^ie  to  tyrants  only,"  was  threatened  by  the 
Massachusetts  Act  of  1774,  by  which  the  charter  of  that 
Colony  was  radically  changed,  and  the  right  of  free  dis- 
cussion in  the  old  Town  meeting  was  seriously  abridged. 
Hereafter  none  but  election  meetings  were  to  be  held 
and  no  subject  was  to  be  discussed  except  by  permission 
of  the  royal  governor.  Such  an  act  brought  consterna- 
tion to  every  Colony  in  America.  It  was  such  coercive 
laws  that  brought  the  colonists  into  union  to  resist  what 
they  considered  a  series  of  unconstitutional  measures 
that  were  annihilating  their  chartered  liberties,  abolishing 
their  most  valuable  laws,  and  altering  fundamentally  the 
forms  of  their  government. 

1  Declaration  of  Independence.  2  Letter  to  the  Sheriffs  of  Bristol. 


The  Principles  of  the  Fathers  7 

5.  The  right  of  self-taxation  :  "No  taxation  without 
representation." '—The  Stamp  Act  of  1765  was  an  attempt 
to  impose  by  parliamentary  power  a  direct  The  Right  of 
domestic  tax  upon  the  Colonies.  The  Imperial  Taxation 
Government  had  previously  exacted  some  pay-     "NoTaxa- 

.  1  1  r     t'on  without 

ments  at  the  customs  houses  upon  the  trade  ot  Repre- 

the  Colonies.  But  this  was  not  done  for  pur-  sentation." 
poses  of  revenue.  It  was  done  to  regulate  the  trade  of 
the  Empire,  to  enable  the  British  trade  to  surpass  that  of 
the  Dutch  or  the  Spanish  or  the  French;  and,  as  "an  ins- 
trument of  empire,"  since  it  was  taxation  for  commerce 
and  not  for  revenue,  the  colonists  had  been  willing  to 
bear  this  burden  for  the  sake  of  the  common  Imperial 
interests.  The  colonists  called  this  an  external  tax.  Such 
measures  were  looked  upon  as  trade  regulations  External 
rather  than  as  measures  of  taxation.  When  it  Taxation, 
was  desired  that  the  Colonies  should  contribute  to  the  ex- 
traordinary expenses  of  the  Empire  in  money  or  troops 
for  a  foreign  war,  requisitions  were  applied  for.  That 
is,  the  king,  through  the  person  of  his  royal  governor 
in  the  Colony,  asked  for  the  supplies,  and  the  Colony 
through  its  representative  assembly  gave  and  granted 
the  substance  of  the  colonists.     This  was  the 

The  Consti- 

old  system  of  securing  supplies  to  the  Crown  tutionai 

to  which  Burke  pleaded  that  the   Parliament       system  of 

r  111  Requisitions. 

should  return,  and  from  which,  as  he  thought, 
it  ought  never  to  have  departed.  This  was  the  old  prac- 
tice on  which  Pitt  based  his  constitutional  theory  that 
taxation  was  no  part  of  the  legislative  power ;  that  taxes 
were  a  free  gift  of  the  people  to  be  voted,  or  refused,  by 
the  representatives  of  the  people  who  were  expected  to 
pay  the  tax.  This  was  the  old  custom — which  with  Eng- 
lishmen was  the  lazv — that  was  sustained  by  so  many 
precedents  in  English  history.  On  four  memorable 
occasions,  by  four  great  and  notable  statutes,  the 
English  people  had  recognized  the  American  contention 


8  The  American  Republic 

that  there  should  be  no  taxation  without  representa- 
tion : 

In  121 jr,  by  Magna  Charta,  it  was  agreed  as  a  principle 
of  the  Constitution  that  no  aid  (tax)  should  be  imposed 
English  except  by  the  common  council  of  the  nation, 
Precedents     and  an  estates,  or  classes,  that    were  to  pay 

Sustain  the  ,  ,      .         ,  ,      ,      . 

American  were  to  be  summoned,  in  the  persons  of  their 
contention,    representatives,  to  the  national  council. 

In  1297,  by  a  statute  concerning  taxation  without  consent,1 
the  principle  of  no  taxation  without  representation  was 
again  recognized  and  confirmed. 

In  1628,  in  the  celebrated  Petition  of  Right,  this  statute 
was  quoted  and  the  Charter  was  again  confirmed,  and  it 
was  again  declared  that  no  "aid  should  be  levied,  except 
by  the  good  will  and  assent  of  the  national  representa- 
tives." 

Again,  by  the  glorious  Revolution  of  1688,  this  principle 
was  reaffirmed  on  one  of  the  most  solemn  occasions  of 
the  nation's  history. 

It  was  clearly  the  law  and  the  usage  that  taxation  with- 
out consent  was  illegal ;  that  taxes  were  to  be  imposed 
only  by  the  representatives  of  those  who  were  required  to 
pay  them.  By  struggle  after  struggle  this  right  to  be 
consulted  as  to  when  and  how  much  they  should  pay  into 
the  king's  treasury  had  been  wrought  out  by  the  English 
people.  It  was  their  experience  that  this  was  the  safe, 
constitutional  mode  of  taxation.  This  right  was  again 
and  again  encroached  upon  and  denied  by  the  royal 
power,  but  it  was  as  often  recovered  and  vindicated. 
And  each  time  the  practice  was  reasserted  it  became  more 
firmly  embedded  as  a  principle  in  the  national  conduct 
and  Constitution.  In  speaking  of  the  Stamp  Act,  with 
this  experience  of  the  nation  in  view,  Mr.  Lecky  says: 

"  The  measure  did  unquestionably  infringe  upon  a  principle 

1  De  Tallagio  non  Concedendo,  1297, 


The  Principles  of  the  Fathers  9 

which  the  English  race  both  at  home  and  abroad  have  always 
regarded  with  a  peculiar  jealousy.  The  doctrine  that  taxa- 
tion and  representation  are  in  free  nations  insepa- 

.  .      Taxation  and 

rably  connected,  that  constitutional  government  is  Representa- 
closely  connected  with  the  rights  of  property,  and  tion  Go 

1       1       •   •  i  j  i_  Together. 

that  no  people  can  be  legitimately  taxed  except  by 
themselves  or  their  representatives  lay  at  the  very  root  of  the 
English  conception  of  political  liberty."  ' 

In  opposition  to  the  new  taxing  policy  of  Parliament  in- 
volved in  the  Stamp  Act,  the  colonists  expressed  this  old 
English  principle  substantially  as  follows : 

' '  That  it  was  essential  to  the  freedom  of  a  people,  and  the 
undoubted  right  of  Englishmen,  that  no  taxes  be  imposed  on 
them  but  with  their  own  consent,  given  personally 

'   °  x  Statement  of 

or  by  their  representatives.  the  stamp 

"  That  the  Colonies  could  not  be  represented  in  Act  Congress, 
Parliament  and  that  their  only  representatives  were 
persons  chosen  therein  by  themselves,  and  that  no  taxes  ever 
have  been  or  can  be  imposed  on  them  but  by  their  representa- 
tive legislatures. 

"  That  all  supplies  to  the  Crown  being  free  gifts  of  the  peo- 
ple, it  is  unreasonable  and  inconsistent  with  the  principles  and 
spirit  of  the  English  Constitution  for  the  people  of  Great 
Britain  to  grant  the  property  of  the  colonists. ' ' 2 

This  is  not  to  be  thought  of  as  a  theory  which,  once 
thought  out  a  priori  by  some  great  thinker  or  statesman, 
had  then  been  promulgated  for  the  nation  and  for  the 
future.  Our  fathers  did  not  deal  with  theories  in  that 
sense.  But  the  maxim,  ' '  No  taxation  without  representa- 
tion," is  to  be  looked  upon  as  an  attempt  to  deduce  from 
their  history  and  to  formulate  what  had  been  a  long- 
standing practice.  It  was  a  description  of  what  had  been, 
so  far  as  they  and  their  estates  were  concerned.      It  did 

1  American  Revolution,  p.  75. 

2  Resolutions  of  the  Stamp  Act  Congress,  1765. 


io  The  American  Republic 

not  relate  to  the  rights  of  individuals  or  of  minorities. 
It  was  not  intended  to  assert  that  "a  man's  property  is 
absolutely  his  own,  and  that  what  he  has  acquired  cannot 
be  taken  from  him  without  his  consent  "  ;  although  such 
language  was  used  by  the  advocates  of  the  colonial  cause 
both  in  England  and  America.1  All  men  wish  not  to  be 
taxed,  and  very  few  men  give  their  consent  to  all  their 
taxes.  If  no  tax  could  be  collected  except  what  every 
man  willingly  consented  to,  society  would  be  reduced  to 
anarchy.  Nor  was  it  intended  to  assert  by  the  phrase, 
"No  taxation  without  representation,"  that  all  persons 
who  paid  taxes  should  be  represented  in  the  legislature 
that  imposes  the  tax.  The  doctrine  was  formulated  to 
vindicate  the  right  of  one  class  or  estate  in  the  realm 
against  another,  or  to  vindicate  the  right  of  one  body 
politic  against  another  claiming  superior  authority.  How- 
ever, it  may  be  fairly  claimed  that  the  logical  inference  is 
that  equal  rights  in  taxation  of  individuals  within  a  state 
should  prevail.  For,  when  we  say  that  taxation  and 
representation  should  go  together,  we  clearly  assert  that 
all  who  pay  taxes  to  the  state  should  have  a  voice  in 
determining  their  assessment  and  distribution. 

The  controversy  over  these  issues  led  to  the  Declara- 
tion of  Independence,  July  4,  1776.  In  this  great  docu- 
ment, which  Buckle  calls  "that  noble  Declaration  which 
ought  to  be  hung  up  in  the  nursery  of  every  king  and 
blazoned  on  the  porch  of  every  royal  palace,"  our  Fathers 
announced  their  theory  of  government  to  the  world. 
The  memorable  words  in  which  they  then  announced 
their  principles  of  government  should  be  stored  in  the 
memory  of  every  citizen  of  America: 

"  When  in  the  course  of  human  events  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  that  connect  them 

1  Pitt  on  American  Taxation.  Samuel  Adams  :  Massachusetts  Circular 
Letter,  1768. 


The  Principles  of  the  Fathers  1 1 

with  another  and  to  assume  among  the  nations  of  the  world 
that  just  and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them,  a  decent  regard  to  the  opinion  of 
mankind  requires  that  they  should  make  known  the  causes 
leading  to  the  separation.  We  hold  these  truths  to  be  self-evi- 
dent: That  all  men  are  created  equal;  that  they  are  endowed 
by  their  Creator  with  certain  inalienable  rights,  among  which 
are  life,  liberty,  and  the  pursuit  of  happiness;  that  to  secure 
these  rights  governments  are  instituted  among  men  deriving 
their  just  powers  from  the  consent  of  the  governed;  that  when- 
ever any  form  of  government  becomes  destructive  of  these 
ends,  it  is  the  right  of  the  people  to  alter  or  abolish  it,  and  to 
institute  a  new  government,  laying  its  foundations  in  such  prin- 
ciples and  organizing  its  powers  in  such  form  as  to  them  shall 
seem  most  likely  to  effect  their  safety  and  happiness."  ' 

This  Declaration  teaches : 

i.  That  men  have  rights.  Among  these  are  life, 
liberty,  and  the  pursuit  of  happiness. 

2.  That  governments  are  instituted  for  the  benefit  of 
the  governed, — to  secure  and  protect  these  rights  of  men. 

3.  That  these  governments  "derive  their  just  powers 
from  the  consent  of  the  governed." 

4.  That  whenever  any  government  becomes  destructive 
of  these  rights,  it  is  the  right  of  the  people  to  overthrow 
it ;  and  when  the  people  have  overthrown  a  perverted 
government,  it  is  their  right  and  duty  to  establish  a  new 
government  on  whatever  principles  and  in  whatever  form 
will  ensure  the  public  safety  and  happiness. 

5.  That,  under  law  and  government,  and  in  the  pro- 
tection of  these  rights,  "all  men  are  created  equal." 

These  principles  were  announced  as  self-evident, — as 
if  they  had  only  to  be  stated  in  order  to  be  accepted. 
Yet,  perhaps,  no  political  platform  of  equal  length  in  all 
human  history  has  been  the  subject  of  greater  contro- 
versy and  dispute;  and  no  statements  have  been  more 

1  Preamble  of  the  Declaration  of  Independence. 


12  The  American  Republic 

persistently  -  misunderstood  and  misconstrued.  Some, 
false  to  these  principles,  have  sought  to  bring  them  into 
disrepute  by  a  false  and  literal  interpretation.  Others, 
lacking  an  intelligent  conception  of  their  meaning,  have 
been  too  easily  disposed  to  reject  them  as  untenable.  It 
is  important  that  the  children  should  know  what  the 
Fathers  believed,  and  they  should  be  ready,  if  need  be, 
to  defend  those  beliefs.  In  order  to  do  this  and  to  repel 
the  constant  attacks  upon  the  famous  Declaration  of  the 
Fathers  and  to  expose  the  frequent  perversions  and  re- 
pudiations of  their  principles,  it  is  necessary  to  know 
what  our  Fathers  really  believed. 

In  approaching  this  subject  it  is  important  to  bear  in 
mind  that  in  politics,  in  the  practical  business  of  govern- 
ing, there  are  no  political  policies  and  programs  suitable 
for  universal  application.  A  proposition  in  politics  de- 
pends for  its  truth  upon  the  sense  in  which  it  is  intended, 
or,  often,  on  the  circumstance  or  relation  to  which  it 
applies.  We  may  assert  that  a  republic  is  the  best  form 
of  government,  or  that  manhood  suffrage  should  prevail, 
that  the  majority  should  rule,  and  that  self-government 
should  be  established  among  men.  These  things  may  be 
true  for  us  and  for  many  other  peoples.  Our  fathers  be- 
lieved that  some  of  these  things  were  true  for  them  and 
for  their  children  ;  but  no  one  has  ever  maintained,  and 
the  Fathers  of  this  Republic  should  never  be  accused  of 
maintaining,  that  these  statements  were  universally  true 
for  all  peoples,  in  all  times,  and  under  all  circumstances. 
This  is  not  to  say  that  there  are  no  political  principles 
that  are  fixed  and  abiding,  or  that  a  nation's  principles 
should  depend  upon  its  circumstances.  Politics  is  a  part 
of  man's  life  and  in  man's  life  there  are  principles  that 
are  divine,  that  proceed  from  the  very  nature  of  God  and 
man,  and  that  are,  therefore,  absolute,  eternal,  and  un- 
changeable. Times  may  change,  and  men  may  change 
with  them,  but  principles  do  not  change.      In  spirit  the 


The  Principles  of  the  Fathers  13 

principles  of  our  fathers  abide,  and  they  are  the  same  to-day 
as  when  they  were  announced  in  1 776.  ' '  The  letter  killeth, 
the  spirit  maketh  alive. "  It  is  not  the  form  but  the  spirit 
of  truth  that  is  eternal.  It  is  the  political  spirit  that  con- 
trolled the  political  lives  of  the  Fathers  that  we  must  seek. 
This  is  quite  consistent  with  the  recognition  of  the  fact 
that  political  doctrines  are  to  be  studied  in  relation  to 
their  times ;  that  political  doctrines  are  relative ;  Poiiticai 
that  in  order  to  see  whether  they  are  true  or  false       Doctrines 

,.  .  ,    ,.  ,1        are  Relative. 

it  is  necessary  to  see  them  in  relation  to  the 
doctrines  that  they  oppose ;  that  the  science  of  govern- 
ment, if  it  be  not ' '  the  science  of  circumstances, ' '  as  Burke 
has  denned  it,  is  at  least  an  historical  science —  The  science 
that  is,  its  premises  have  their  foundations  in      °^°°t^ 
experience.     The  political  principles  that  our       Historical 
fathers  announced  were  not  spun  out  of  their 
heads ;  they  were  not  evolved  from  the  inner  conscious- 
ness of  some  philosopher  shut  up  in  a  closet :  but  their 
principles  came  out  of  their  lives,  were  evolved  from  their 
experience  and  from  the  circumstances  in  which  they  were 
placed.     They    must,    therefore,    be    studied    and   fairly 
interpreted    in    relation  to  this  experience  and   history. 
History  teaches  us  how  these  principles  came  to  be,  and 
if  we  wish  to  know  their  meaning  we  must  know  them 
in  their   development   and    in   their  cause.     It  is  only  in 
this  way  that  we  can  come  to  know  the  sense  and  spirit  of 
a  body  of  principles.     To  attempt  to  express  one's  princi- 
ples in  a  maxim  and  to  offer  this  maxim  as  of  universal 
application,  is  not  a  scientific  or  sensible  process  in  govern- 
ment.    To   affirm  a   political  proposition  absolutely;  to 
assert    positively,    once    for    all,    for    illustration,    that 
"governments  derive  their  just  powers  from  the  consent 
of  the  governed,"  would  be  as  unwise  as  to  deny  this 
absolutely.      Not    absolute    maxims,    but    the    principle 
underlying  the  maxim  is  what  we  should  seek. 

Bearing  these  things  in  mind,  we  may  come  to  the  arti- 


i4  The  American  Republic 

cles  of  political  faith  which  our  fathers  announced  and  not 
hesitate  to  accept  them  when  truly  and  fairly  interpreted. 

I.  Men  Jiave  rights. — It  would  be  unprofitable  here  to 
go  into  a  discussion  of  the  theory  of  natural  rights.  Our 
Men  have  fathers  thought  very  little  of  pure  theory  in 
Rights.  politics  and  we  should  theorize  as  little  as  they. 

It  is  sufficient  to  ask, —  What  were  the  two  opposing 
practices  on  this  subject  which  confronted  our  fathers 
as  the  outcome  of  their  historical  experience?  On  what 
opposing  policies  did  they  base  their  doctrine? 

(i)  One  view  insisted  upon  the  absolute  authority  of  the 
sovereign,  declaring  that  no  rights  can  exist  in  opposition 
Absolutism     to  the  sovereign's  will. 

vs.  Rights  of      (2)  The  other  insisted  upon  certain  natural 
rights  of  individuals  which  the  sovereign  can 
never  legally  infringe. 

For  more  than  a  century  men  had  been  in  contention 
over  these  theories.  The  defenders  and  apologists  of  the 
royal  power  in  England  had  taught  that  all  men  were 
born  under  the  necessity  of  submitting  to  an  absolute 
kingly  government;  that  he  that  had  the  power  had 
the  right ;  whether  he  came  to  his  place  by  election, 
inheritance,  usurpation,  or  any  other  way,  the  persons 
and  estates  of  his  people  were  subject  to  his  will, 
Divine  and  none  should  oppose  that  will.     To  fight 

Rights  of       against   that  will  was    to  fight    against    God, 

King    and  &  fc>  fc>  ' 

Passive  for  all   powers  that  be  were  ordained  of  God 

Obedience.        an(j    the    kjng    wag    Qod>s    anointed.        James    I. 

voiced  the  idea  of  kingly  absolutism:  "As  it  is  atheism 
and  blasphemy  in  a  creature  to  dispute  what  the  Deity 
may  do,  so  it  is  presumption  and  sedition  in  a  subject 
to  dispute  what  a  king  may  do."  After  the  Revolution 
of  1688  the  Church  and  all  the  royal  party  continued 
to  teach  that  the  king's  right  was  divine,  different  not 
only  in  degree  but  in  kind  from  every  other  power  in  the 
state ;  that  resistance  to  him  was  in  all  cases  a  sin.     On 


The  Principles  of  the  Fathers  15 

the  day  that  Algernon  Sidney  was  executed,  December 
7,  1683,  a  few  moments  before  his  head  fell  into  the 
basket,  he  handed  the  sheriff  a  paper  review- 

,  ,  Sidney 

ing  his  case.  The  doctrine  of  tyranny  stated  vindicates 
above  is  in  substance  as  Sidney  stated  it  in  his   Principles  of 

J  Liberty. 

dying  words.  It  was  for  opposing  that  doc- 
trine that  Sidney  sacrificed  his  life.  What  a  legacy  to  our 
fathers  was  the  memory  of  a  martyr  like  Sidney !  In  his 
life  and  death — and  he  was  but  a  type  of  many — he 
exemplified  the  principles  of  this  Republic.  Many  of 
our  fathers  in  the  Old  World,  like  Sidney,  gave  up  their 
lives,  and  many  more  gave  up  their  homes,  in  opposition 
to  these  doctrines  and  practices  of  despotism.  As  is  well 
known,  the  founders  of  these  States  were,  for  the  most 
part,  political  and  religious  exiles  who  carried  with  them 
to  the  New  World  the  spirit  of  resistance  to  tyranny  and 
oppression.  The  Fathers  of  our  Revolution  were  their 
children  and  they  were  deeply  imbued  with  the  opposing 
principles  of  liberty  taught  by  Pym  and  Milton  and  Har- 
rington and  Sidney  and  Locke.  With  them,  the  question 
of  human  rights  was  settled.  Whoever  would  dispute 
about  that,  let  him  dispute.  But  for  them  and  for  their 
children,  in  the  state  which  they  were  founding,  they 
would  declare  that  "whenever  any  prince,  or  Locke  and 
legislature,  or  government  should  endeavor  to  ^^fj^ 
take  away  or  destroy  the  property  of  the  people,  and 

or  to  reduce  them  to  slavery  under  arbitrary  Resistance- 
power,  the  people  zuere  then  absolved  from  any  further 
obedience  and  are  left  to  the  common  refuge  which  God  hath 
provided  for  all  men  against  force  and  violence." 

From  this  it  will  be  seen  that  our  fathers  knew  their 
rights;  and  that  they  asserted  the  righteousness,  and 
would  dare  the  dangers,  of  revolution  in  order  to  maintain 
those  rights. 

1  Locke,  Treatise  on  Government,  chapter  on  "  The  Dissolution  of 
Government." 


1 6  The  American  Republic 

This,   indeed,  was  nothing  new  in  1776.     Our  fathers 

were  simply  maintaining  the  old  principles  of  civil  liberty 

which  had  been  taught  them  in  England,  and 

English  which,  it  was  supposed,  had  triumphed  finally 

principles.      in  the  English  Revolution  of  1688. 

2.    Governments  are  for  the  benefit  of  the  governed. — 

Little  need  be  said  on  this  proposition.     It   needs   no 

proof.     It  comes  as  near  to  being  self-evident 

Governments  ...  .  ■,-.•  t?        _ 

are  for  the  as  any  proposition  in  politics  can  come.  Even 
Benefit  of  the  the  kjngS  Gf  earth,  the  absolute  rulers  who  hold 
by  an  hereditary  title  and  who  still  claim  to  rule 
by  divine  right,  generally  confess  that  they  hold  their 
office  for  the  benefit  of  the  nation,  that  they  are  bound 
to  rule  in  such  a  way  as  to  promote  the  welfare  of  the 
people  governed.  The  Stuart  kings  of  England  acknow- 
ledged that  they  were  bound  to  exercise  their  powers  in 
such  a  way  as  to  promote  the  common  welfare.  The  dif- 
ference between  these  kings  and  their  Puritan  Parliaments 
was  that  the  Stuarts  proposed  to  be  guided  only  by  their 
own  sense  as  to  what  the  public  welfare  required. 

While  this  principle  of  government  for  the  governed 
seems  obvious  to  us,  we  must  remember  that  the  opposite 
principle  was  constantly  being  practised  and  insisted  upon 
by  rulers  and  emperors  and  kings.  A  large  part  of  the 
history  of  the  Roman  Empire  merely  illustrates  the  prac- 
tice of  looking  upon  government  as  an  institution  to  be 
used  for  the  benefit  of  the  governors, — for  the  benefit  of 
Rome  and  a  governing  class.  Provinces  were  conquered 
Spain  violate  that  ^       mjcrht  be  taxed  and  the  taxes  ex- 

the  Principle  y  o 

of  Govern-  pended,  not  in  the  provinces  for  the  benefit 
TntltTlhZ    of  the  people  who  paid  them,  but  that  these 

Benefit  ot  the  r        jt  * 

Governed.  revenues  might  be  sent  to  Rome  to  be  used 
there  for  the  benefit  of  a  rich,  luxurious,  and  imperial 
oligarchy.  Spain  acted  upon  the  same  principle.  During 
her  centuries  of  colonial  misrule,  from  the  time  Colum- 
bus   discovered  America    until    she    lost    Cuba   and    the 


The  Principles  of  the  Fathers  1 7 

Philippines,  Spain  constantly  exploited  her  colonies  for  her 
own  benefit,  taxing  and  oppressing  and  defrauding  the  col- 
onists for  the  benefit  of  Spaniards  at  home,  for  the  enrich- 
ment of  the  rulers  who  had  charge  of  the  government  in 
Spain.  It  is  not  to  be  wondered  at  that  Rome  was  finally 
dismembered,  and  that  Spain  constantly  suffered  from  re- 
bellions in  her  colonies  and  that  she  has  now  lost  them  all. 
It  was  so  in  our  own  Colonies.  In  proportion  as  Great 
Britain  governed  us  in  our  own  interest,  promoting  our 
trade  and  prosperity  by  wise  and  unselfish  laws,  there 
were  loyalty  and  love  for  the  mother  country.  But  in 
proportion  as  the  Colonies  were  exploited  for  British 
benefit,  as  our  trade  was  restrained  and  manufactures 
suppressed  to  promote  the  interests  of  British  trading 
companies  at  home,  and  as  we  were  taxed  to  relieve 
Englishmen  from  taxation, — just  in  that  proportion  were 
there  friction,  resistance,  disloyalty,  and  disunion.  Our 
fathers,  therefore,  with  this  experience  before  them,  an- 
nounced it  as  one  of  the  great  lessons  of  history,  as  one  of 
the  fundamental  principles  of  the  state,  that  governments 
should  exist  for  the  benefit  of  the  governed.  History 
had  made  this  so  evident  that  it  seemed  to  them  self- 
evident.  No  one  can  be  more  recreant  to  his  Rulers  are 
country  than  the  American  who  would  use  a       Trustees; 

1  i-  m  1  it  1  r  Public  Office 

public  office  not  to  promote  the  public  welfare,  a  Public 
but  for  the  benefit  of  himself  and  his  friends.  Trust. 

It  is  one  of  the  first  fundamental  principles  of  the  Re- 
public that  a  public  office  is  a  public  trust. 

But  the  Fathers  announced  more  than  this. 

3.  Government  by  the  consent  of  the  governed.  Our 
fathers  asserted,  not  only  that  government  should  exist 
for  the  benefit  of  the   governed,  but   that   it 

,,,.,,  .        Government 

should  exist  by  the  consent  of  the  governed  ;  it  by  the 

should  be    by  the   people  as    well  as    for  the      Consent  of 

,<~  ,      .  ,.-  the  Governed. 

people.      Governments  derive  their  just  powers 
from  the  consent  of  the  governed." 


1 8  The  American  Republic 

This  maxim  has  been  the  subject  of  so  much  mis- 
understanding and  of  so  much  controversy;  its  reckless 
use  has  led  to  so  much  confusion  instead  of  enlighten- 
ment, that  it  becomes  necessary  to  dwell  at  some  length 
upon  the  meaning  with  which  it  is  to  be  received. 

What  did  our  fathers  means  by  such  a  saying?  How 
does  government  rest  on  consent?  There  are  so  many 
consent  of  instances  where  it  appears  that  government 
the  Governed  rests  on  force ;  the  maxim  is  seemingly  so  con- 

Seems  Incon-  ... 

sistent  with    trary  to  history,  to  our  own  national  expen- 
the  Accepted  encej  ancl  to  the  accepted  facts  of  our  national 

Facts  of  our 

National         life,    that    such  a  saying  seems   impossible  of 
Llfe-  belief.      After    we    purchased     Louisiana,     in 

1803,  we  proceeded  to  govern  the  people  of  that  Ter- 
ritory without  their  consent.  We  did  the  same  with 
the  inhabitants  of  Florida  after  18 19,  and  of  the  Mex- 
ican cessions  after  1848.  The  people  of  the  District  of 
Columbia  and  of  all  the  Territories  have  no  voice  in 
determining  their  fundamental  law  or  the  form  of  their 
government.  We  prevented  secession  by  war  and 
crushed  the  rebellion  by  national  authority  against  the 
consent  of  the  Southern  people.  Many  half-civilized 
tribes  of  Indians  have  been — and  ought  to  have  been — 
governed  against  their  wills.  More  than  half  of  the 
nation,  the  women  and  children,  have  no  voice  of  con- 
sent in  their  own  government.  Other  illustrations  of  ap- 
parent inconsistency  with  the  principle  of  the  consent  of 
the  governed  might  be  given.  Must  we  admit,  then,  that 
we  are  false  to  our  principles  and  unwilling  to  live  up  to 
them?  Or,  must  we  abandon  the  doctrine  of  the  "con- 
sent of  the  governed  "  as  unsound  and  untenable?  It  is 
always  immoral  and  fatally  injurious  to  charac- 
Poiiticai  ter  to  profess  one  life  and  to  live  another.  If 
onsistency.  Qur  profession  be  not  true,  we  must  abandon 
it,  openly  and  honestly.  If  it  be  true,  we  must  be  ready 
to  explain  our  faith  and  adhere  to  it. 


The  Principles  of  the  Fathers  19 

« 

Obviously  the  phrase  the  "consent  of  the  governed" 
has  been  misunderstood  and  misapplied.  In  order  to 
understand  its  true  scope  and  significance  it  is  well  to 
recognize  first  what  it  does  not  mean. 

I.  //  does  not  mean  that  government  derives  its  authority 
from  a  social  compact. —  Our  fathers  did  not  announce 
the  social-contract  theory  of  government.  This 
theory  teaches,  in  substance,  that  once,  when  by  cogent 
men  were  in  a  state  of  nature,  free  from  the  does  not  Rest 
restraints,  obligations,  and  benefits  of  govern-  Theory  of 
ment,  thev  agreed  together  to  surrender  some         a  social 

'  J       °  &  ,  ,  Compact. 

of  their  liberties  in  return  for  the  order,  pro- 
tection, and  benefits  of  government,  and  that  out  of  this 
social  contract,  or  covenant,  or  compact,  government 
grew  and  derived  its  authority.  This  theory  is  unhistori- 
cal  and  unsound.  No  such  "social  contract  "  was  ever 
made,  and  government  does  not  derive  its  authority  from 
such  a  source.  The  framers  of  the  Declaration  of  Inde- 
pendence— men  like  Franklin,  Sherman,  Livingston,  and 
John  Adams — did  not  believe  this  theory,  nor  did  they 
teach  it  to  the  world.  Jefferson  may  have  been  influ- 
enced by  it,  and  though  some  of  his  utterances  seem 
based  upon  it,  there  is  no  evidence  that  he  regarded 
"government  by  the  consent  of  the  governed"  as 
resting  upon  the  basis  of  the  social  contract.  It  is  not  in 
the  sense  of  Rousseau's  Social  Contract  that  the  consent 
of  the  governed  is  to  be  considered.  Taken  in  that  sense 
it  would  be  an  unprofitable  subject  of  study.1 

But  there  was  a  sense  in  which  our  fathers  believed  in 
the  compact  theory,  or  the  doctrine  of  contract,  as  ap- 
plied to  their  government.  They  accepted  it  as  opposed 
to  the  theory  of  the  divine  right  of  kings.      Our  fathers 

1  For  further  study  of  this  subject  see  :  Rousseau,  Le  Conlrat  Social ;  A. 
Lawrence  Lowell,  Essays  on  Government ;  Lyman  Abbott,  "  The  Rights 
of  Man,"  The  Outlook,  27th  April,  1901  ;  Giddings,  Democracy  and  Em- 
pire ;  John  Morley's  Essay  on  Rousseau. 


20  The  American  Republic 

were  undoubtedly  adherents  of  the  doctrine  that  their 
kingly  government  existed  by  right  of  contract  between 
the  king  and  his  people,  and  that  they  were  not  bound 
in  passive,  abject  obedience  to  a  divinely  appointed  king. 
Their  kings  ruled  by  agreement,  not  by  indefeasible 
hereditary  right.  Their  doctrine  was  sustained  in  phi- 
losophy by  Milton,  Locke,  and  Sidney,  and  later  by 
Priestley  and  Price  and  Godwin.  It  was  regarded  as  an 
exhaustive  division  of  all  theories  of  government  that 
they  came  from  divine  right,  paternal  authority,  or  in 
compact.  The  first  two  were  regarded  as  identical. 
So,  as  the  alternative  was  divine  right  or  compact, 
our  fathers  accepted  the  latter.  In  this  sense  the 
compact  theory  was  nothing  more  than  an  attempt  to 
frame  a  theoretical  formula  to  justify  revolt  against  op- 
pression and  tyranny.1  The  Whig  theory  of  the  Eng- 
lish Revolution  of  1688 — which  was  the  theory  of  the 
American  Colonies — was  that  the  king  had  forfeited  the 
crown  by  breaking  the  contract  between  the  king  and 
the  people ;  that  the  throne  was  thereby  vacant,  and  the 
nation  should  elect;  that  in  determining  the  succession, 
the  nation,  through  its  representative  legislature,  should 
impose  such  conditions  as  would  in  future  insure  the 
country  against  misgovernment.  In  harmony  with  the 
Whig  theory,  the  Commons  solemnly  resolved:  "  That 
King  James  II,  having  endeavored  to  subvert  the  Constitu- 
tion of  the  kingdom,  by  brcakmg  the  original  contract 
between  king  and  people,  and  having  violated  the  funda- 
mental laws  and  withdrawn  himself  out  of  the  kingdom,  has 
abdicated  the  government  and  the  throne  is  thereby  vacant." 
The  theory  of  Locke  and  Sidney  had  triumphed  over 
that  of  Filmer.  It  was  afterwards  reasonably  held  that 
by  this  Revolution  the  English  people  had  acquired  three 
fundamental  rights : 

1  Leslie  Stephen's  History  0/  English  Thought  in  the  Eighteenth  Century, 
vol.  ii.,  pp.  136,  142. 


The  Principles  of  the  Fathers  21 

(1)  To  choose  their  own  governors. 

(2)  To  cashier  them  for  misconduct. 

(3)  To  frame  a  government  for  themselves.1 
Though  Burke  laboriously  denies  that  these  rights  are 

to  be  derived  from  the  English  Revolution  of  1688,  we 
may  fairly  claim  that  they  are  undeniably  grounded  in 
the  American  Revolution  of  1776,  and  that  the  old  Whig 
theory  of  contract  is  sound  wherein  it  teaches  that  if  the 
people  are  fundamentally  injured  by  the  subversion  of 
their  government,  the  people  have  the  right  to  save  or 
recover  by  resistance  the  constitution  and  the  liberties  to 
which  they  had  an  original  title. 

II.  //  must  also  be  clear  that  "consent  of  the  governed" 
does  not  mean  that  all  people  are  capable  of  self-government, 
that  all  people  should  be  allowed  to  make  and  ad- 
minister their  own  laws. — That  would  be  foolish  the  Govern  °d 
and  absurd.  Does  any  one  suppose  that  the  does  not 
hard-headed  framers  of  the  Declaration  of  In-  Government 
dependence    believed    such    a    thing?      It    is    forallSorts 

.  °  and 

obvious  that  children  must  be  obedient  to  Conditions 
authority,  to  be  restrained  and  governed,  often  ofMen' 

against  their  wills,  by  those  who  care  for  them  and  who 
are  older  and  wiser  than  they.  It  is  so  with  semi-civilized 
and  savage  tribes  of  men.  They  have  no  right  to  follow 
their  own  caprice;  to  destroy  their  own  lives;  to  enslave 
one  another ;  to  lay  waste,  or  leave  waste,  the  land  that 
God  has  given  them ;  to  live  without  law  and  order,  in 
recognition  of  no  law  except  that  "might  makes  right." 
If  such  a  people  have  an  inheritance  of  land  and  oppor- 
tunity, that  inheritance  will  be  taken  away  and  given  to 
another.  Such  is  the  law  of  nature  and  of  nature's  God, 
— the  God  in  whom,  above  all,  our  fathers  believed.  It 
is  clearly  the  right  and  duty  of  a  people  wiser  and  better 
and  stronger  than    the    ignorant  and  the  uncivilized  to 

1  Dr.  Richard  Price,  "  Discourse  on  the  Love  of  Country,"  November  4, 
1789,  cited  by  Burke  in  his  Reflections  on  the  French  Revolution. 


22  The  American  Republic 

govern  these  and  to  direct  them  into  law  and  order  for 
their  greater  safety  and  security.  The  wiser  and  the 
stronger,  it  is  true,  must  recognize  the  principle  of  re- 
sponsibility, that  they  are  responsible  for  governing  justly 
and  in  the  interest  of  the  governed,  but  the  fact  must  also 
be  recognized  that  the  unfit,  the  imbecile,  and  the  vicious 
have  no  right  to  govern,  not  even  the  right  to  govern  them- 
selves. The  criminal  must  be  restrained  and  imprisoned 
by  authority  and  righteous  force.  The  idiot  and  the  in- 
sane must  be  cared  for  by  those  who  are  benevolent  and 
wise.  In  short,  the  incapable  must  be  governed  by  the 
capable.  Our  fathers  in  their  Declaration  of  Indepen- 
dence did  not  deny  any  of  these  plain  propositions. 

III.  In  the  third  place,  the  "  consent  of  the  governed"  does 
not  mean  that  suffrage  is  an  inherent  right  and  that  politi- 
cal pozver  in  the  state  should  be  conferred  on  all 
th^G^med  alike. — The  doctrine  does  not  require  that  the 
does  not         state,  under  all  conditions,  should  be  placed  in 
suff^age^s  an  tne   power  of  the    mere    numerical    majority, 
inherent        Nothing  could  be  more  inconsistent  than  this 
with  both  the  principles  and  practices  of  the 
men  of  f6.     Our  fathers  never  believed  that  suffrage  was 
an  inherent  right.     They  uniformly  treated  it  as  a  privi- 
lege to   be   conferred    for  fitness.      Of  the  three  million 
people  in  America  in  1776,  five  hundred  thou- 
consented      sand  were  negro  slaves ;  one  million  five  hun- 
tothe  dred  thousand  were  women;  one  million  were 

Revolution  ?  t  .  T 

minors;  several  hundred  thousand  were  In- 
dians. One  third  of  the  whites  opposed  the  Revolution. 
There  were  property  qualifications  for  suffrage,  sufficient 
to  prevent  many  more  whites  from  participating  in  the 
government.  It  is  certain  that  the  slaves  were  not  can- 
vassed, that  the  Indians  were  not  consulted,  that  the 
women  and  children  had  no  votes,  and  that  the  Tories 
were  voted  down.  With  all  these  conditions  how  small  a 
proportion  of  the  people  of  America  consented  to  the  Rev- 


The  Principles  of  the  Fathers  23 

olutlon  and  to  the  adoption  of  the  Constitution  !  Clearly, 
it  was  only  an  insignificant  minority  of  a  ruling  race. 

It  may  be  said  by  some  that,  while  this  was  so,  the 
Fathers  announced  a  principle  that  was  subsequently  to 
modify  and  correct  their  own  practice.  This  is  true  to  a 
great  extent,  but  it  is  still  clear,  both  from  their  prin- 
ciples and  their  practice,  that  nothing  was  further  from 
the  meaning  and  intention  of  their  declaration  than  that 
all  men  of  whatever  kind  should  be  left  free  at  all  times  to 
govern  themselves  or  to  control  the  political  power  of  the 
state.  Such  an  assertion  would  be  too  flagrantly  incon- 
sistent with  the  conduct  of  the  Fathers,  and  in  all  the 
history  of  our  national  life  no  attempt  has  ever  been  made 
to  carry  such  an  assertion  into  practical  application.  Nor 
does  loyalty  to  the  principles  of  the  Declaration  of  Inde- 
pendence require  it.  The  Fathers  knew,  as  well  Self_ 
as  we,  that  self-government  involves  both  liberty   Government 

x  r  •  Involves 

and  capacity.  It  involves  liberty  from  caprice  Liberty  and 
and  passion  and  prejudice  and  criminality.  It  capacity, 
involves  capacity  to  know  and  to  do  what  is  best  for  all  con- 
cerned,— for  those  who  are  in  authority  and  for  those  who 
are  under  authority.  No  people  have  a  right  to  self-govern- 
ment— to  government  by  their  consent — unless  they  can 
show  a  reasonable  measure  of  liberty  and  capacity. 

There  are  many  illustrations  in  our  history  that  will 
help  to  make  this  clear  and  emphatic.  After  our  Civil 
War,  when  the  slaves  of  the  South  had  been  emancipated, 
these  freedmen  were  given  political  power.  The  ballot 
was  placed  in  their  hands,  while  many  of  the  intelligent 
white  people  of  the  South  were  disfranchised.  The 
negroes  were  ignorant  and  helpless,  debased  and  depraved 
by  generations  of  slavery.  The  great  mass  of  them  could 
neither  read  nor  write.  Illiterate  and  unfit  to  rule,  they 
were  the  ready  dupes  of  unscrupulous  adventurers  and 
demagogues.  The  carpet-bag  governments  that  were  set 
up  in  the  Southern  States  oppressed  the  intelligence  and 


24  The  American  Republic 

property  of  the  South  in  an  unjust  and  riotous  manner. 
In  the  name  of  the  "consent  of  the  governed,"  State 
governments  were  established  founded  on  fraud  or  on 
external  force;  they  robbed  the  State  treasuries,  imposed 
exorbitant  taxes,  and  made  law  and  justice  a  mere  mock- 
ery. "Government  for  the  benefit  of  the  governed"  was 
entirely  disregarded.  Now,  while  the  Declaration  of  In- 
dependence recognizes  no  line  of  race  or  color;  while  it 
teaches  that  all  men  should  be  free,  and  implies  that  all 
men  who  are  fit,  regardless  of  race  or  color,  should  be 
allowed  to  express  their  consent,  or  dissent,  in  govern- 
ment,  it  is  still  clearly  in  harmony  with  this 

Intelligence  .  ...  ,      . 1       . 

and  virtue  declaration  that  the  vicious  and  the  ignorant 
may  Resist     ancj  t}le  incompetent  should  be  displaced  from 

the  Rule  of  r  ^ 

the  ignorant  power,  and  that  intelligence  and  capacity  should 
and  the  get  good  government  in  place  of  the  bad, 

Vicious.  c    °  *=»  c  ' 

which  would  have  due  regard  to  the  welfare  of 
the  governed,  which  would  be  bound  to  administer  jus- 
tice, protect  life  and  property,  and  give  equal  rights  to 
all  men  under  the  law. 

Our  fathers  denied  the  "divine  right  of  the  king  to 
govern  wrong."  In  denying  this  they  did  not  assert  the 
divine  right  of  the  numerical  majority  to  govern  wrong. 
They  asserted  rather,  that  when  any  government  became 
destructive  of  their  rights,  when  it  became  corrupt  and 
tyrannical  and  oppressive,  such  a  government  should  be 
overthrown  and  a  good  government  organized  in  its  stead, 
having  regard  to  the  safety  and  happiness  of  the  people. 

"  The  government  of  the  righteous  father  is  for  the  benefit 
of  his  children,  but  it  does  not  rest  on  the  consent  of  the  chil- 

.f  dren;  the  government  of  the  just  teacher  is  for  the 

Government  benefit  of  his  pupils,  but  it  does  not  rest  on  the  con- 
is  the  ideal,  t    f  ^j   pupiis .  the  government  of  God  is  for  the 

the  Goal  ;  not  r    r       »  to 

the  starting-  benefit  of  man,  but  it  does  not  rest  on  the  consent 
Point.  Qr  man      jf  ought  always  to  be  the  object  of  those 

who  are  responsible  for  government,  whether  of  the  family,  the 


The  Principles  of  the  Fathers  25 

school,  or  the  state,  to  make  that  government  so  evidently 
disinterested,  just,  and  beneficent  that  it  shall  win  the  consent 
of  the  governed,  and  so  educative  that  it  shall  become  even- 
tually a  self-government.  But  self-government  is  the  end  to 
be  reached,  not  the  starting-point  to  be  assumed."  ' 

It  will  be  evident  to  the  student  of  our  politics  that  our 
fathers  never  intended  to  oppose  these  simple  truths ;  that 
their  Declaration  did  not  assert  the  capacity  of  all  men 
for  self-government,  or  that  incapables  had  the  right  to 
govern.  Their  announcement,  it  is  true,  points  towards 
self-government  among  all  people  as  the  ideal.  It  is,  in- 
deed, the  ideal  in  the  home,  in  the  school,  in  the  state. 
The  parent  and  the  teacher  and  the  ruler  should  in  one 
sense  strive  to  "make  themselves  useless."  That  is,  they 
should  so  govern  that  the  governed  will  become  capa- 
ble of  self-control  and  self-direction,  and  the  forcible 
control  of  teacher  and  parent  and  ruler  will  be  no  longer 
needed.  Self-government  is  the  goal  constantly  to  be 
striven  for,  and  until  it  is  attained  the  character  and  hap- 
piness of  a  people  can  never  be  secure.  Our  maxim 
clearly   implies,    even   though   it    does    not    assert,   that 

1  Dr.  Lyman  Abbott,  The  Outlook,  February  3,  1900,  For  further 
illustration  and  discussion  of  this  subject  see  the  same  article  p.  244. 
The  editor  says  :  "  In  Santiago,  Cuba,  1898,  when  the  American  Govern- 
ment took  command,  the  deaths  were  seven  hundred  a  week.  This 
was  due  to  a  universal  disregard  of  the  simplest  and  most  self-evident  sani- 
tary laws.  The  people  desired  to  live  in  disregard  of  these  laws.  When 
General  Wood  undertook  to  prescribe  and  enforce  certain  sanitary  regulations 
he  had  to  meet  and  overcome  the  passive  resistance  of  the  people,  and  would 
have  had  to  resist  and  overcome  their  active  resistance  if  they  had  dared  to 
resist.  Not  with  the  consent  of  the  governed,  but,  in  spite  of  their  opposi- 
tion, the  deaths  were  reduced  from  seven  hundred  a  week  to  thirty  or  forty 
a  week  by  a  beneficent  government.  In  such  a  case  which  right  takes  pre- 
cedence, the  right  to  life  of  the  men  and  women  and  children  killed  before 
their  time,  or  the  right  of  an  ignorant  and  incompetent  people  to  determine 
what  shall  be  the  sanitary  conditions  of  the  city  in  which  they  live  ?  —  that 
is,  the  right  of  the  people  to  have  their  government  administered  for  their 
benefit,  or  the  right  of  the  people  to  have  it  conform  to  their  will  ?  Clearly 
the  latter  right  must  fall  in  with  the  former  or  it  must  fall  away." 


26  The  American  Republic 

moral  obligation  rests  upon  every  nation  to  educate  the 
ignorant  and  the  poor,  and  to  extend  full  citizenship  as 
fast  and  as  far  as  the  safety  of  society  will  permit.1 

While,  then,  our  fathers  did  not  assert  that  the  re- 
sponsibilities and  privileges  of  self-government  should  be 
conferred  upon  all  men  regardless  of  fitness  or  condition, 
they  did  clearly  imply  that  all  men  should  have  the  op- 
portunity to  become  fit,  and  they  held  strongly  to  the 
optimistic  faith  that  all  men  may  become  capable  of  self- 
government. 

When  men  show  themselves  ripe  for  an  increase  of  freedom, 
government  must  remove  all  restrictive  bonds.  And  the  statesman 
must  make  men  ripe  for  increased  freedom  by  every  possible  means. 
By  nothing  is  this  ripeness  and  capacity  for  freedom  so  much  pro- 
moted as  by  freedom  itself. ' '  2 

Turning  from  the  negative  aspects  of  this  maxim,  from 
a  mere  implication  that  it  involves,  we  must  seek  to 
understand  more  clearly  and  fully  its  positive  meaning. 

It  must  be  remembered  that  to  understand  this  doc- 
trine, that  "governments  derive  their  just  powers  from 
the  consent  of  the  governed,"  it  should  be  considered  in 
connection  with  the  opposing  historic  principles  which  our 
fathers  had  seen  in  conflict.  Whether  all  men,  at  all 
times  and  places,  were  capable  of  self-government  was 
not  the  issue  upon  which  they  were  called  to  make  a  dec- 
laration. In  fairness  to  the  Fathers  we  must  recognize 
the  political  issues  over  which  they  were  in  conflict. 

I .  English  lawyers  in  defence  of  monarchy  and  arbitrary 
government  had  early  and  frequently  taught  that  the  king 
was  the  source  of  all  legislative  power.  All  that  the  peo- 
ple had  to  do  with  the  government  was  to  pay  its  taxes ; 
the  people  had  nothing  to  do  with  the  laws  except  to 
obey  them. 

1  See  an  article  in  Education  for  January,  1900. 

2  Humboldt,  Sphere  and  Duties  of  Government. 


The  Principles  of  the  Fathers  27 

2.  Opposed  to  this  was  the  principle  that  the  will  of 
the  people  was  the  source  of  the  law;  that  any  change  in 
the  law  and  the  taxes  required  the  consent  of  The  People, 
those  whom  it  concerned.  This,  too,  is  a  very  not^R%H 
old  idea.  It  goes  back  at  least  to  the  fam-  the  source 
ous  maxim  of  Edward  I.  (1297),  "that  which  of the Law- 
toucheth  all  should  be  approved  by  all."  That  is,  the 
common  will  should  be  the  common  law.  When,  therefore, 
a  Stuart  king  announced  that  he  would  govern  according 
to  the  common  weal,  but  not  according  to  the  Government 
common  will,  he  meant  to  assert  that  his  will  bost*0fUordthe 
should  be  above  the  law.  "Rex  est  lex,"  said  common 
the  king.  "No,"  said  our  fathers  in  the  Com-  ^b/the 
mons  House  of  Parliament,  "the  King  is  not  Common 
the  law ;  the  law  is  King."  "Magna  Charta  is 
such  a  fellow  as  knows  no  sovereign,"  as  Pym  expressed 
it.  That  is,  the  great  law  to  which  the  body  of  the  na- 
tion had  agreed  should  be  supreme.  The  will  of  the  na- 
tion, not  the  will  of  the  king,  shall  be  the  sovereign  law. 
And  our  fathers  in  England  determined  that  they  would 
bring  their  kings  into  subjection  to  their  sovereign  law  or 
they  would  have  no  king.  This  struggle  of  popular  sov- 
ereignty against  personal  arbitrary  government  cost  one 
king  of  England  his  head  and  another  his  crown,  and  when 
the  struggle  ended  by  the  "Glorious  Revolution  of  1688" 
it  was  understood  that  while  kings  in  England  were  still  to 
be  allowed  to  reign  they  were  never  again  to  be  permitted 
to  govern. 

During  this  struggle  the  popular  cause  found  a  voice  in 
one  of  the  greatest  Englishmen  and  one  of  the  noblest 
advocates  of  liberty  that  has  ever  lived, — Milton,  the 
poet,  the  philosopher,  the  statesman.  In  his  defence  of 
the  English  people  for  their  resistance  to  the  Stuart 
tyranny  Milton  said  : 

"  The  people,  by  experience  and  trial,  had  found  the  dan- 


28  The  American  Republic 

ger  and  inconvenience  of  committing  arbitrary  power  to  any. 
They  invented  laws  formed  or  consented  to  by  all  that  should 
confine  and  limit  the  authority  of  whom  they  chose  to  govern 
Milton  them;  that  thereafter  no  man,  of  whose  failing  they 

Defends  the    hacj   pr0of ,    should   rule  over  them,  but  law  and 

Right 

of  the  reason,  abstracted  as  much  as  might  be  from  per- 

Peopie  to  sonal  error  and  frailties.  As  the  magistrate  was  set 
above  the  people,  so  the  law  was  set  above  the  magis- 
trate. Since  the  king  or  magistrate  holds  his  authority  of  the 
people,  both  originally  and  naturally  for  their  good  in  the  first 
place  and  not  his  own,  then  may  the  people,  oft  as  they  shall 
judge  it  for  the  best,  either  choose  him  or  reject  him,  retain 
him  or  depose  him,  though  no  tyrant,  merely  by  the  liberty 
and  right  of  freeborn  men  to  be  governed  as  seems  to  them 
best.  If  men  both  wise  and  religious,  not  to  speak  of  heathen, 
have  done  justice  upon  tyrants  what  way  they  could  soonest, 
how  much  more  mild  and  humane  then  is  it  to  give  them  fair 
and  open  trial;  to  teach  lawless  kings  and  all  who  so  much 
adore  them,  that  not  mortal  man,  or  his  imperious  will,  but 
justice  is  the  only  true  sovereign  and  supreme  majesty  upon 
earth. 

"  If  it  be  said  that  our  fathers  acted  without  precedent  in 
deposing  and  executing  their  king,  it  argues  the  more  wisdom, 
virtue,  and  magnanimity,  that  they  know  themselves  able  to  be 
a  precedent  to  others;  who  perhaps,  in  future  ages,  if  they 
prove  not  too  degenerate,  will  look  up  with  honor,  and  aspire 
towards  these  exemplary  and  matchless  deeds  of  their  ances- 
tors, as  to  the  highest  top  of  their  civil  glory  and  emulation, 
which  heretofore  in  the  pursuance  of  fame  and  foreign  do- 
minion, spent  itself  vaingloriously  abroad;  but  henceforth 
may  learn  a  better  fortitude  to  dare  execute  highest  justice  on 
them  that  shall  by  force  of  arms  endeavor  the  oppressing  and 
bereaving  of  religion  and  their  liberty  at  home.  That  no  un- 
bridled potentate  or  tyrant,  but  to  his  sorrow,  for  the  future 
may  presume  such  high  and  irresponsible  license  over  man- 
kind, to  havoc  and  turn  upside  down  whole  kingdoms  of  men 
as  though  they  were  no  more  in  respect  to  his  perverse  will  than 
a  nation  of  pismires." 


The  Principles  of  the  Fathers  29 

Ours,  then,  should  be  a  government  of  laws,  not  of  men. 
Government  by  law  should  be  paramount.  And  the 
powers  of  government, — of  determining  upon  George  in. 
war  and  peace  and  taxation  and  expenditures        Attempts 

r  -1  to  Restore 

and  other  great  measures  and  policies  of  gov-  personal 
ernment,— these  abided  in  the  nation  to  be  Government, 
governed.  And  when  George  III.,  in  violation  of  law, 
attempted  to  restore  personal  government  in  the  Colonies, 
vetoing  laws  and  revoking  charters  at  his  pleasure,  our 
fathers  in  America  determined  to  abolish  the  kingship  it- 
self as  dangerous  to  the  state.  They  knew  and  would 
therefore  say,  as  Jefferson  expressed  it,  that  "kings  are 
the  servants  not  the  proprietors  of  the  people";  that 
these  rulers,  the  servants  of  the  people,  should  be  bound 
to  recognize  and  to  execute  the  law  as  determined  upon 
by  the  representatives  of  the  nation.  Sovereign  power 
should  abide,  not  in  any  king,  or  personal  ruler,  or  fa- 
vored few,  but  in  the  people  themselves,  in  the  mem- 
bers of  the  nation,  in  the  body  politic.  In  the  political 
people  was  to  be  found  the  source  of  the  powers  to  be 
exercised.  This  is  one  thing,  at  least,  that  our  fathers 
meant  when  they  declared  that  "all  just  powers  of  gov- 
ernment are  derived  from  the  consent  of  the  governed." 
However  inadequately  a  maxim  may  state  it,  it  is  a  prin- 
ciple so  broad  and  clear  that  no  one  need  ever  mistake  its 
vital  meaning. 

3.  There  was  another  issue  immediately  confronting 
the  promoters  of  our  Revolution. 

Did  a  foreign  parliament,  a  representative  legislature  of 
a  people  three  thousand  miles  across  the  sea,  have  the 
right  to  control  and  overrule  other  parliaments,  A  state 

the  representative  legislatures  of  other  peoples,       Politically 

,  .  ,  ...  Organized 

of  other  politically  organized  communities  in  and  Capable 
America?     Our   fathers,  while   admitting  that     constitutes 

0      .  a  People. 

the  Colonies  were  parts  of  the  British  Empire,^ 
subject  to  Imperial  regulations,  asserted 


30  The  American  Republic 

domestic  concerns  they  were  responsible  to  no  govern- 
ment but  their  own;  they  were  the  subjects  of  no  gov- 
ernment except  that  to  which  they  had  given  their 
consent  through  their  representatives.  The  issue  was 
plain.  Historically,  it  related  merely  to  the  extent  of 
colonial  independence.  Politically,  it  was,  whether,  of  two 
political  communities  that  had  shown  themselves  by  ex- 
perience to  be  capable  of  self-government,  one  should  be 
allowed  to  control  and  dominate  the  other.  This  issue 
had  nothing  to  do  with  the  rights  of  individuals.  Con- 
fusion arises  from  confounding  statements  concerning  the 
rights  of  individuals  with  this  declaration  of  our  fathers 
touching  the  rights  of  nations  or  of  peoples.  'No  people 
— that  is,  no  nation,  or  state,  or  politically  organized 
community — may  be  brought  under  the  government  of 
any  other  people,  or  ruler,  without  its  consent. 

"  The  law  of  nature  and  of  nature's  God  entitle  every  people 
to  its  separate  and  equal  right  of  self-government  and  direction 
one  People     among  the  powers  of  earth. 

should  not  "  In  1 845,  Texas  was  such  a  people  and'  it  should 

ave  ™P°se  not  nave  been,  and  was  not,  made  subject  to  the 

upon  it  the  ■> 

Will  of  laws  of  the  United  States  without  its  consent. 

Another.  <<jn  jg00>  cuba  is  such  a  people,  and  to  annex 

it  to  the  United  States  without  its  consent  would  violate  the 
fundamental  principle  of  the  Republic.     .     .     . 

"In  1776,  Rhode  Island  was  such  a  people,  not  sovereign 
and  independent  in  international  law,  but  with  the  political 
and  constitutional  right  of  self-government  guaranteed.  Its 
consent  to  membership  in  the  British  Empire,  to  be  subject  to 
the  commercial  and  international  regulations  of  Parliament  in 
common  with  the  other  political  communities  of  that  Empire, 
was  implied  and  understood  in  the  constitution  under  which  it 
was  governed.  It  was  the  unconstitutional  attempt  to  govern 
and  tax  Rhode  Island  and  her  sister  Colonies  without  their 
consent  and  against  their  interests  that  led  to  this  great  decla- 
ration of  a  people's  rights.     In  this  declaration  our   fathers 


The  Principles  of  the  Fathers  31 

were  not  considering  the  doctrine  of  the  social  compact;  they 
were  not  considering  the  rights  of  minorities;  they  used  the 
word  '  people  '  as  equivalent  to  '  nation, '  as  an  organized  politi- 
cal person.  They  were  not  thinking  of  scattered  settlers,  or 
predatory  bands  roaming  over  vast  regions  they  could  neither 
own  nor  occupy.  They  were  affirming  the  right  of  each  of  the 
thirteen  Colonies,  or  of  all  together,  to  throw  off  the  yoke  of 
George  III.,  and  to  separate  itself,  or  themselves,  from  Great 
Britain.  Our  fathers  were  here  speaking  of  the  equal  rights  of 
nations,  of  their  duties  to  each  other. 

"At  what  point  do  a  few  individuals  acquire  these  rights  of 
a  people  ?  The  exact  point  where  a  few  scattered  settlements 
become  a  people,  or  a  few  nomadic  tribes  a  nation,  does  not 
admit  of  precise  mathematical  definition.  One  cannot  say, 
any  more  than  we  can  say  when  a  brook  becomes  a  river,  when 
a  pond  becomes  a  lake,  or  a  lake  becomes  a  sea."  ' 

It  will  be  seen  with  this  reasonable  explanation  of  the 
maxim  and  of  the  conflict  that  brought  it  forth,  that 
Jefferson  did  not  violate  this  doctrine  of  the  consent  of 
the  governed  when  he  bought  Louisiana  in  1803,  nor  did 
John  Quincy  Adams  when  he  acquired  Florida  in  18 19, 
nor  Sumner  when  he  made  his  speech  for  Alaska  in  1867. 
In  1780,  when  the  Continental  Congress  was  seeking  to 
induce  the  States  to  cede  their  claims  to  the  Northwest 
Territory  to  the  Central  Government,  to  be  held  as  a 
common  possession,  Congress  solemnly  resolved  and 
pledged  itself  that  this  territory  should  "be  0urSystem 
settled    and   formed    into    distinct    republican      Pledged  in 

1  r       1  'ts  Origin 

States,   which  shall    become    members   ot   the  Self. 

Federal   Union   and   have   the  same  rights  of  Government 

0  to  the 

sovereignty  and  freedom  and  independence  as  states  and 
the  other  States."  2  From  this  first  accession  Territories, 
of  territory  until  to-day,  in  all  of  our  acquisitions  we 
have  recognized  fully  this  doctrine  of  the  consent  of  the 

1  Senator  George  F.  Hoar,  Speech  in  the  United  States  Senate,  April  17, 
1900. — Cong.  Record.  '2  Journals  of  Congress,  1780. 


2,2  The  American  Republic 

governed,  by  holding  that  territory  so  acquired  should  be 
held  to  be  made  into  self-governing  States.  We  have  at 
times  inconsistently  postponed  or  delayed  for  a  season 
the  fulfilment  of  this  principle.  But  it  is  clear  that  per- 
manently refusing,  or  indefinitely  postponing  to  recog- 
nize this  principle  of  self-government  within  the  Republic 
would  be  inconsistent  with  the  principles  of  the  Fathers. 
4.  It  is  not  the  purpose  of  this  book  to  enter  into  the 
discussion  of  political  philosophy.  But  if  conflicting 
Government  philosophies  of  life  be  applied  to  government, 
by  consent     ancj  jf  jj.  j-,e  askeci  whether  men  had  better  be 

VS. 

Government  governed  by  coercive  means  or  by  persuasion, 
by  Force.  foy  ^e  application  of  external  force  or  by  se- 
curing their  inward  consent,  there  can  be  no  doubt  as 
to  which  view  is  taught  by  the  Declaration  of  Indepen- 
dence. There  is  just  as  little  doubt  as  to  which  phi- 
losophy is  founded  in  wisdom  and  experience.  All  just 
governments  will  finally  rest  their  cause  on  the  consent  of  the 
governed.  Otherwise  they  will  find  ultimately  that  their 
foundations  are  insecure.  This  philosophy  was  applied 
to  government  in  America  long  before  the  Declaration 
of  Independence.  When  the  Rev.  Thomas  Hooker  pre- 
pared for  Connecticut  the  "first  written  constitution 
known  to  history  that  created  a  government,"  he  reflected 
his  political  democratic  gospel  that  "the  foundation  of 
authority  is  laid  in  the  free  consent  of  the  people."  Ac- 
cording to  this  democratic  principle,  government  is  not  to 
be  looked  upon  as  an  end  in  itself.  Government  does  not 
exist  for  the  sake  of  good  government  alone, — that  itself, 
as  a  thing  apart  from  the  people,  may  be  perfect  and  well 
ordered.  It  exists  for  the  benefit  of  the  people  governed  ; 
that  its  people  may  grow  in  civilization ;  that 
Exists  for  the  they  may  be  educated  and  uplifted;  that  they 
Development  may  be  developed  materially,  mentally,  mor- 

of  Character.  .    .  . 

ally,  spiritually.      It  is  better  for  a  people  that 
they  participate  in  their  own  government  and  learn  by 


The  Principles  of  the  Fathers  33 

their  blunders  and  errors  than  that  they  should  not  be 
free  to  commit  blunders  and  errors,  or  that  they  should  be 
compelled  by  outside  authority  and  compulsion  to  pursue 
the  right  way.  Governments  may  otherwise  rule  over 
subjects,  dependents,  and  slaves, — and  keep  them  such, — 
but  there  is  no  other  government  for  the  development  of 
men.  Character  comes  by  freedom  and  self-control,  and 
no  just  government  will  ever  be  unmindful  of  this  greatest 
end  of  its  being,  the  development  of  character.  Neither 
in  politics  nor  in  religion  can  salvation  come  in  any  other 
way.  For  this  reason,  also,  we  may  insist  upon  "gov- 
ernment by  the  consent  of  the  governed." 

IV.  In  the  fourth  place  our  fathers  asserted  what  we 
are  accustomed  to  call  the  "right  of  revolution."  "  When 
any  form  of  government  becomes  destructive  of  TheRi  ht 
these  ends  it  is  the  right  of  the  people  to  alter  or  of 

abolish  it  and  to  institute  a  new  government ,  evo  utlon- 
such  as  to  them  shall  seem  most  likely  to  effect  their  safety 
and  happiness. ' '  ' 

One  great  end  of  government  is  protection, — to  secure 
men  in  their  rights  to  life,  liberty,  property,  happiness, 
and  home.  But  if  government,  instead  of  recognizing  the 
rights  of  men,  denies  these  rights ;  if,  instead  of  protect- 
ing these  rights,  it  violates  them,  it  is  no  longer  a  right- 
eous government  and  has  no  right  to  demand  obedience 
and  subjection.  It  may  have  power  to  rule,  but  it  has  no 
right  to  rule.  "Government  ceases  to  be  an  object  of 
obedience  when  it  becomes  an  instrument  of  oppression. ' ' 2 
This  is  not  to  teach  that  the  citizen  should  resort  to 
violence  and  revolution  against  every  unjust  act  of  gov- 
ernment.    The  faithful  citizen,   as  against  an 

_  1  11  1  Remedies 

unjust  government,  will  first  seek  all  other  against  an 
means  of  self-preservation  and   defence.      He  unjust 

,  ,  Government. 

may  submit  and  suffer  a  wrong  to   be  done, 

as  men  usually  do,  rather  than  risk  the  greater  evils  of 

1  Declaration  of  Independence.  2  Godwin,  Political  Justice. 

3 


34  The  American  Republic 

resistance  and  revolution ;  he  may  appeal  to  the  govern- 
ing authority — to  the  king,  to  the  nation,  to  public  opinion 
— to  right  the  wrong,  as  men  should  always  do  who  live 
under  a  free  constitution  where  there  is  the  right  of  free 
discussion  and  free  appeal ;  he  may  emigrate  and  refuse 
longer  to  live  under  what  he  considers  an  unjust  govern- 
ment, as  did  many  of  the  exiled  founders  of  the  United 
States.  If  all  these  means  of  defence  fail  he  will  be  justi- 
fied in  seeking  to  overthrow  a  persistently  unjust  govern- 
ment. This  will  be  his  right  and  it  may  be  his  duty. 
But  we,  like  our  fathers,  are  to  look  upon  revolution  as  a 
last  resort : 


"  Prudence,  indeed,  will  dictate  that  governments  long  es- 
tablished should  not  be  changed  for  light  and  transient  causes  ; 
and  accordingly  all  experience  has  shown  that  mankind  are 
more  disposed  to  suffer  while  evils  are  sufferable  than  to  right 
themselves  by  abolishing  the  forms  to  which  they  are  accus- 
tomed. But  when  a  long  train  of  abuses  and  usurpations,  pur- 
suing invariably  the  same  object,  evinces  a  design  to  reduce 
them  under  absolute  despotism,  it  is  their  right,  it  is  their  duty 
to  throw  off  such  government,  and  to  provide  new  guards  for 
their  future  security."  ' 

The  revolutionist,  however,  must  show  (i)  that  his 
cause  is  just, — the  government  against  which  he  struggles 

nditions  must  be  clearly  an  unjust  government;  (2)  that 
justifying  there  is  no  other  remedy ;  (3)  that  the  evils  of 
Revolution.  su  Amission  are  greater  than  those  of  resistance ; 
(4)  that,  from  the  standpoint  of  wisdom  and  expediency, 
there  are  reasonable  chances  of  success.  However,  a 
man  determined  upon  liberty  or  death,  who  is  willing  to 
die  for  his  cause,  may  be  justified  in  facing  immediate 
failure  if  this  will  prepare  the  way  for  subsequent  success. 

1  Declaration  of  Independence. 


The  Principles  of  the  Fathers  35 

Governments  are  often  turned  from  an  unjust  course  by 
an  unsuccessful  revolution.  They  fear  the  repetition  of 
resistance.  This  is  what  Jefferson  had  in  mind  when  he 
said  that  some  resistance  and  bloodshed  were  necessary 
occasionally  to  keep  governments  in  order.1 

V.  "A//  men  are  created  equal, ' ' — in  their  rights  to  life, 
liberty,  and  the  pursuit  of  happiness. 

Law  and  government  must  recognize  the  equal  claim 
of  everybody  to  these  rights.  This  involves  an  equal 
claim  to  all  the  means  of  life,  liberty,  and  hap- 

.  .    .  ....  ,  Equal  Rights 

piness, — the  opportunities  and  privileges  that  to  Life> 

laws,    institutions,  and   governments  may  af-  Liberty,  and 

,  .  Happiness. 

ford.'  By  government  one  person  s  happiness 
must  be  counted  for  exactly  as  much  as  another's. 
"Everybody  is  to  count  for  one,  and  nobody  for  more 
than  one."  Greek  or  Barbarian,  Gentile  or  Jew,  rich  or 
poor,  high  or  low,  ignorant  or  learned,  white  or  black, — 
without  regard  to  religion,  station,  lineage,  color,  race,  or 
previous  condition  of  servitude, — all  must  be  treated  with- 
out discrimination,  must  be  put  upon  the  same  footing  by 
government  and  law,  and  all  must  be  allowed  the  fullest 
and  freest  exercise  and  development  of  their  natural 
powers.  As  in  play  it  is  the  business  of  the  umpire  to 
see  that  the  rules  of  the  game  apply  to  all  alike,  the  rich 
boy  being  given  no  special  favor,  the  poor  boy  being  de- 
nied no  fair  chance,  so  in  the  State  it  is  the  business  of 
government  to  secure  "equal  rights  for  all,  special  privi- 
leges for  none."  This  elemental  maxim,  so  simple  and 
self-evident  to  all  fair-minded  men,  has  been  assailed  and 

1  The  utilitarian  doctrine  of  Bentham  would  make  revolution  more  readily 
justifiable.  "  It  is  the  right  and  duty  of  every  man  to  enter  into  measures 
of  resistance  when,  according  to  his  best  calculations,  the  probable  mis- 
chiefs of  resistance  appear  less  to  him  than  the  probable  mischiefs  of  sub- 
mission."— Bentham's  Works,  vol.  i.,  p.  287.  For  further  discussion  of 
this  topic  see  "  The  Rights  of  Man,"  by  Lyman  Abbott,  The  Outlook,  vol. 
lxviii,  No.  1,  pp.  42-43,  May  4,  1901. 

2  Sir  James  Fitzjames  Stephen's  Liberty,  Equality,  Fraternity. 


36  The  American  Republic 

ridiculed  as  if  it  purported  to  teach  what  its  framers  never 
dreamed  of.1 

It  asserts  nothing  whatever  with  reference  to  the  physi- 
cal, mental,  moral,  political,  or  spiritual  qualities  of  men. 
It  is  one  of  the  commonest  observations  of  life  that  in  all 
these  respects  men  are  created  unequal.  Men  are  unequal 
in  physical  stature,  in  mental  powers,  in  moral  emotions, 
in  political  aptitudes,  in  spiritual  discernments.  The 
"standard  maxim  of  free  society  "  which  our  fathers  set 
up  does  not  prevent  the  recognition  of  this  elemental 
fact  in  life.  It  does  not  teach  that  government  should 
attempt  to  make  men  equal  in  their  natural  qualities  or 
attempt  to  disregard  the  natural  inequalities  in  human 
society.  It  does  not  say  that  men  should  be  made  to  live 
in  society  as  equals  or  that  "no  law  should  recognize  any 
inequality  between  human  beings."     It  is  clear  that  the 

1  This  maxim  has  been  assailed  as  if  it  were  intended  to  teach  the  equality 
of  men  in  their  merits  and  capacities.  It  is  a  waste  of  energy  in  the  oppo- 
nents of  democracy  to  be  thus  continually  slaying  the  slain.  To  remind  us 
repeatedly  of  what  every  one  knows,  that  men  are  created  unequal  in  respect 
to  their  mental,  moral,  and  political  qualities  is  nothing  to  the  point.  But 
it  is  gravely  used  as  ground  for  the  denial  and  repudiation  of  the  funda- 
mental principle  underlying  the  Republic  by  those  who  are  unwilling  to 
accept  the  results  of  manhood  suffrage  and  democracy  in  our  national  life. 
It  may  be  interesting,  if  not  profitable,  to  notice  a  few  of  the  labored 
utterances  of  some  who  have  been  unwilling  to  apply  the  logical  conclusions 
of  the  principles  of  the  Declaration  of  Independence  in  our  politics.  In  the 
slavery  controversy,  the  anti-slavery  agitators  persisted  in  calling  to  their 
support  this  original  foundation-principle  of  the  Republic,  much  to  the  an- 
noyance of  a  government  whose  practice  was  belying  its  professions.  Rufus 
Choate,  the  brilliant  Whig  orator,  who  cared  nothing  for  the  rights  of  the 
slave,  referred  to  the  maxim  of  the  Declaration  as  "  a  beautiful  and  glitter- 
ing generality."  Charles  Sumner,  in  the  Senate  Chamber  in  1854,  made 
this  phrase  from  the  Declaration  of  Independence  the  basis  of  his  powerful 
arraignment  of  slavery  and  the  Kansas-Nebraska  Bill.  Senator  Pettit,  of 
Indiana,  in  answer  to  Sumner,  took  bolder  ground  than  Choate  :  "  It  is 
not  only  not  a  self-evident  truth  that  all  men  are  created  equal,  but  it  is 
a  self-evident  lie.  In  no  one  instance  is  there  any  color  of  truth  in  it.  I 
speak  what  is  true.  I  speak  what  is  the  judgment  of  all  men,  if  they  dare 
say  it,  that  neither  morally,  mentally,  socially,  nor  politically  does  equality 


The  Principles  of  the  Fathers  37 

doctrine  of  equality  as  a  demand  for  a  fair  and  equal 
chance  in  the  State  is  unanswerable.  But  it  is  not  true 
that  the  doctrine  seeks  to  put  him  who  uses  his  chance 
well  on  the  same  level  with  him  who  uses  it  ill. 
"Equality  not  only  of  right  but  equality  of  fact  is  the 
social  goal," — this  may  be  according  to  the  canons  of 
socialism,  but  it  is  not  in  harmony  with  the  spirit  of 
American  democracy,1  which  asserts  only  that  no  law  or 
government  should  attempt  to  ordain,  establish,  and  per- 
petuate an  inequality  that  would  not  naturally  and  other- 
wise exist.  Nobody  should  have  any  advantage  over 
another  save  the  advantage  given  him  by  his  own  mental, 
moral,  or  physical  superiority.  There  should  be  "no 
legal  barrier  to  prevent  any  man  from  acquiring  the 
property  and  rights  or  rising  to  the  position"  to  which 
another  member  of  the  community  is  entitled  to  attain. 
Accordingly,  rank  and  privilege,  political  condition  and 

exist  in  any  country  on  the  earth.  It  cannot  exist  in  the  nature  of  things. 
God  Himself  has  not  created  them  equal.  It  is  not,  therefore,  a  truism  as 
Jefferson  put  it  forth,  but  it  is  false  in  form  and  false  in  fact.  God  made 
exceptions  as  to  political  rights.  He  created  a  priesthood.  He  created 
kings  and  set  them  up  over  the  people.  It  is  His  recorded  and  plainly 
written  will  that  there  is  no  such  thing  as  equality  among  men." 

To  this  generation  these  seem  like  strange  words  from  a  disciple  of  democ- 
racy and  a  professed  follower  of  Thomas  Jefferson,  uttered  in  our  Senate 
halls  only  twenty-eight  years  after  the  sage  of  Monticello  had  been  carried 
to  his  grave.  Chief  Justice  Taney,  speaking  for  the  majority  of  the  Supreme 
Court  of  the  United  States  in  the  Dred  Scott  case,  in  1857,  referring  to  the 
Declaration  of  Independence,  said  :  "  It  is  evident  that  the  slave  race  were 
not  intended  to  be  included  in  the  general  words  used  in  that  memorable 
instrument.  The  words  would  seem  to  embrace  the  whole  human  race,  but 
that  they  were  not  so  intended  is  too  clear  for  dispute ;  in  that  case  the 
conduct  of  the  distinguished  men  who  framed  the  Declaration  of  Inde- 
pendence would  have  been  utterly  and  flagrantly  inconsistent  with  the  prin- 
ciples they  asserted,  and  instead  of  the  sympathy  of  mankind  to  which  they 
so  confidently  appealed  they  would  have  deserved  and  received  universal 
rebuke  and  reprobation." 

The  student  who  may  be  interested  in  other  historical  utterances  touching 
this  maxim  is  referred  to  the  Lincoln-Douglas  Debates,  1858. 

1  Stephen,  Liberty,  Equality,  Fraternity. 


t.J 


>8 


3's  The  American  Republic 

the  right  to  rule,  "cannot  be  hereditary,  but  must  be 
open  to  every  person  who,  by  his  talent,  diligence,  and 
good  fortune  is  capable  of  attaining  to  them."  '  All 
qualities  and  all  inequalities  should  have  fair  play. 

This  maxim  of  human  equality,  like  the  others  to  which 
we  have  referred,  is  to  be  studied  in  connection  with  what 
e  uai  Ri  hts  ^  opposes.  It  does  not  oppose  or  deny  that 
wiiiRecog-  reward  should  be  according  to  merit,  or  that 
there  are  differences  of  capacity  for  serving  the 
community,  or  that  high  function  should  go  with  high 
faculty,  or  that  a  man's  rights  in  politics  are  strictly 
limited  to  a  right  of  the  same  protection  for  his  own  in- 
terests as  is  given  to  the  interests  of  others.2  Our  maxim, 
far  from  opposing  these  things,  confronted  very  different 
ideas  and  practices. 

There  have  always  been  interests  and  parties  in  the 
state  striving  to  inculcate  the  doctrine  that  there  are 
,  ..       „        classes  born  to  rule,  while  others  are  born  to 

Is  there  a 

Ruling  service  and  subjection ;  that  there  is  a  natural 

superiority  in  this  ruling  class,  and  that  all  other 
classes  are  naturally  inferior;  that  some  were  born  booted 
and  spurred  ready  for  riding,  while  others  were  born  for 
saddles  and  bridles,  ready  to  be  ridden ;  that  these  burden- 
bearers,  the  great  masses  of  men,  must  be  content  with 
the  laborious  and  obscure  condition  in  which  they  were 
born,  and  that  there  must  not  be  raised  in  their  minds 
false  ideals  and  vain  expectations  that  doors  of  opportu- 
nity may  be  open  also  to  them  and  their  children,  leading 
to  education,  learning,  position,  power,  and  fame.  These 
were  not  for  the  common  herd  but  for  their  God-ap- 
pointed rulers.  They  who  taught  this  false  doctrine 
would  therefore  impose  artificial  restraints  upon  the  many 
and  confer  special  favors  and  privileges  upon  the  few. 
The  application  of  this  doctrine  in  government  invariably 
prevents  the  recognition  of  all  true  merit,  of  all  natural 

1  Lowell,  Essays  on  Government,  p.  176.  2  See  Morley's  Rousseau. 


The  Principles  of  the  Fathers  39 

and  real  superior  ability  and  power  for  the  service  of  the 
state.  It  was  this  doctrine  and  its  consequences  that 
confronted  the  young  Republic  in  1776.  The  men  of 
'76  saw  clearly  that  this  had  led  to  a  superstitious  and 
idolatrous  reverence  for  royalty,  to  class  government,  to 
an  artificial  nobility  with  special  privileges,  to  an  aris- 
tocratic social  caste  claiming  superior  ancestral  qualities 
with  special  hereditary  rights,  to  artificial  restraints  and 
special  favors,  and  to  the  denial  of  the  rights  of  the  peo- 
ple to  interfere  in  politics.      These   were  the      „  ..    , 

*  *  Evils  of  an 

ideas  and  practices  with  which  our  fathers  were  Artificial 
confronted.  The  founders  of  the  Republic  Aristocracy- 
were  especially  impressed  with  the  undue  influence  in 
government  of  royal  pageantry  and  parade,  and  with  the 
social  injustice  and  wrongs  of  an  hereditary,  artificial  aris- 
tocracy. They  therefore,  when  they  came  to  make  a 
National  Constitution,  wrote  it  in  their  fundamental  law 
that  no  title  of  nobility  should  ever  be  granted  in  America 
by  any  government,  State  or  National.1 

In    opposition    to   the    polity    of    a    ruling    class   with 
special  favors,  our  fathers  asserted  their  determination  to 
erect  another  polity, — a  self-governed  republic   n 
in  which  the  people  may  choose  their  rulers ;  in  should 

which,  in  respect  not  only  to  the  legal  protec-  Fai^Fieid 
tion  and  civil  rights  of  the  State,   but   to  its  and 

i  rr  .  ii  No  Favor. 

honors,  offices,  opportunities,  and  emoluments, 

there  should  be  a  fair  field  and  no  favor;  in  which  every 


1  Const.,  Art.  I.,  Sees.  9  and  10. 

The  opinion  of  the  founders  of  the  American  Republic,  now  an  ingrained 
American  conviction,  as  to  the  evils  of  an  artificial  aristocracy,  has  lately 
been  expressed  by  a  distinguished  English  scholar  in  writing  on  the  British 
aristocracy:  "The  real  evil  of  peers  and  peerages,  of  squires  and  squir- 
archy,  lies  in  the  substitution  of  a  false  and  artificial  inequality  of  birth  and 
rank  for  the  real  and  natural  inequality  of  brains  and  faculties. — Nobody  is 
anything  by  the  side  of  a  peer.  The  literary  men,  artists,  thinkers,  dis- 
coverers, scientists,  poets,  the  prophets  and  seers  of  the  race, — these  can 
have  but  a  small  place  in  public  estimation.     How  unimportant  a  great 


4o  The  American  Republic 

man  should  be  the  equal  of  every  other  in  his  right 
to  pursue  his  happiness  in  his  own  way,  subject  to  the 
common  weal.  This  is  not  to  assert  the  right  of  every 
man  to  be  put  into  the  possession  of  power  which  is  not 
naturally  and  legitimately  his  own ;  it  does  not  mean  the 
equal  right  of  every  man  to  vote,  to  govern,  to  be  a  ruler, 
a  governor,  or  a  president ;  but,  rather,  an  equal  right  to 
become  able  and  fit  to  be  a  voter,  a  ruler,  a  governor,  a 
president, — every  man  to  be  equally  and  absolutely  unre- 
strained by  a  single  artificial  barrier  of  government  or  civil 
society.  The  principle  implies  that  this  end  will  best  be 
gained  by  manhood  suffrage  in  a  republican  state. 

Our  fathers  were  also  confronting  social  and  political 
conditions  that  called  for  protest  and  opposition,  and  it 
was  their  purpose  to  announce  a  principle  which,  if  re- 
duced to  practice  in  the  state,  would  produce  fairer  and 
more  equitable  conditions. 

' '  We  may  always  be  quite  sure, ' '  says  Mr.  Morley, ' '  that 
no  set  of  ideas  could  ever  have  produced  this  re- 

Our  Fathers  ,.  r,  ..  -.  ., 

Found  sounding  eflect  on  opinion  unless  they  contained 

unequal         something  which  the  social  or  spiritual  condi- 

Conditions  .  .  .     _ 

the  Result  tion  of  men  whom  they  inflamed  made  true  for 
of  unjust        the  time  and  true  in  a  very  urgent  sense."  '     Mr. 

Laws.  J         ° 

Morley  here  refers  to  the  doctrine  of  equality 
announced  in  the  Declaration  of  Independence.     These 

writer,  how  important  a  fool  with  a  title  !  Lord-worship,  flunkeyism, 
snobbery,  eat  into  the  very  heart  and  brain  of  the  nation.  Such  a  system 
makes  the  struggle  of  merit  for  recognition  harder.  It  distracts  the  atten- 
tion of  the  public  from  individualities'and  principles  which  might  raise  and 
widen  it  to  individualities  and  principles  which  narrow  and  retard.  It  pro- 
duces a  universal  reign  of  slavish  snobbery  ruinous  to  the  manliness,  the 
self-respect,  the  dignity,  and  the  independence  of  the  nation.  The  exist- 
ence of  a  class  which  receives  public  attention  on  account  of  birth  alone 
stands  fatally  in  the  way  of  the  really  superior  class  which  deserves  and 
struggles  toward  recognition  in  every  direction.  The  artificial  betterness 
eclipses  the  natural.  The  man-made  inequality  keeps  from  the  service  of 
humanity  the  God-made  inequality  that  can  best  advance  it." — Grant  Allen 
in  The  Cosmopolitan,  April,  igoi.  x  Essay  on  Rousseau. 


The  Principles  of  the  Fathers  41 

pages  cannot  describe  the  unjust  political  and  social  con- 
ditions and  the  governmental  inequities  of  Europe  in  the 
eighteenth  century,  nor  can  they  portray  the  outrageous 
wrongs  inflicted  upon  the  masses  of  Europe  by  the  ruling 
classes, — which  made  government  but  another  name  for 
the  denial  of  justice,  but  another  name  for  tyranny  and 
oppression.  England  after  her  Revolution  of  1688  was 
nominally  a  free  government,  and  her  aristocracy  was  the 
best  in  Europe;  but  that  did  not  mitigate  the  fact  that 
there  was  no  provision  for  promoting  the  interests  of  the 
masses  of  men,  and  that  a  system  and  monopoly  of  gov- 
ernment by  property  was  being  created  which  gave  tre- 
mendous power  and  wealth  to  an  exclusive  class.  Mr. 
Murdoch,  in  his  History  of  English  Reform,  reviews  the 
legislation  of  England  from  1688  to  18 10.  He  recites 
upon  his  pages  sixty-three  statutes  for  the  protection  of 
a  landed  aristocracy,  where  there  was  a  dismal  void  of 
laws  for  the  protection  of  the  masses  of  men. 
Laws  to  protect  creditors  and  landlords,  restric-  nBeneafitIof 
tive  corn-laws,  laws  against  combinations  of  Government 
workmen,  compelling  journeyman  tailors  to  Monopolized 
work  for  fixed  wages,  prohibiting  public  meet-  by  the 

ings   of    laborers,   protecting    game   preserves,   the  Expense 
ejecting  tenants,  freeing  peers  from  imprison-  ofthe 

ment,  providing  prisons  for  artisans  and  labor- 
ers, providing  seven  years'  transportation  for  injuring 
young  shrubs  and  plants  in  the  night, — these  are  typical 
specimens  of  the  legislation  of  a  century  of  which  it  may 
be  said  that  it  was  not  in  the  enactment,  but  in  the  ad- 
ministration, in  which  the  despotism  was  chiefly  felt. 
Punishments  were  merciless,  pitiless,  and  cruel.  From  a 
study  of  that  legislation  and  its  administration,  Murdoch 
is  led  to  remark  that  the  rule  of  the  classes  was  "severe, 
selfish,  systematically  suppressive." 

"The  treatment  of  the  people,"  he  says,  "was  perhaps  worse 


42  The  American  Republic 

than  that  under  the  most  despotic  of  the  monarchs,  for  it  was 
tyranny  under  the  sanction  of  law,  and  was  upheld  by  a  mix- 
ture of  superior  knowledge  and  military  power.  The  final  pic- 
ture to  look  at  was  a  nation  great  and  wealthy  and  luxurious, 
and  another  nation  poverty-stricken,  ignorant  and  debased, 
both  living  side  by  side  in  the  same  island,  the  one  the  govern- 
ors, the  other  the  governed." 

It  was  worse  in  France.  One  may  not  judge  the  social 
condition  of  an  age  or  of  a  people  by  a  single  flash-light. 
But  a  word-picture  of  La  Bruyere,  often  quoted  about 
1776,  served  to  illustrate  the  ancien  regime: 

"One  sees  certain  ferocious  animals,  male  and  female,  scat- 
tered over  the  country,  black,  livid,  and  burned  by  the  sun, 

attached  to  the  land  which  they  dig  and  work  upon 
Tyranny  with  incomprehensible  obstinacy.  They  have  an 
and  class  articulate  voice,  and  when  they  rise  on  their  feet 
in°France!n     tney  exhibit  a  human  face;  and  in  fact  they  are 

men.  At  night  they  retire  to  their  dens,  where 
they  live  upon  black  bread,  water,  and  roots.  Sometimes  they 
live  on  oats,  they  dress  in  skins  and  make  bread  of  ferns, 
but  they  spare  other  men  the  trouble  of  sowing,  cultivating 
and  gathering  articles  of  food." 

These  were  the  governed, — a  peasant,  toiling,  tax-paying, 
disinherited  nation.  A  few  noble  families,  a  hundred 
thousand  or  more,  were  the  governors, — "by  the  grace  of 
God!" 

It  seems  that  the  fulness  of  time  had  come  for  an  ex- 
pression of  human  rights.     When  our  fathers  published 
their  Declaration  to  the  world  it  was  well-nigh 

Our 

Declaration  forgotten  throughout  the  continent  of  Europe 
of  Human       ^j-  human  rights  existed.     Aristocracy,  mon- 

Rights  °  ' 

was  archy,  absolutism,  had  arisen  on  the  ruins  of 

opportune.  mediaeval  liberty.  "The  old  doctrine  of  the 
Church,  taught  by  Aquinas,  that  the  king  exists  for  the 


The  Principles  of  the  Fathers  43 

people,  was  contemptuously  rejected  for  the  doctrine  that 
the  people  existed  for  the  king,  whose  divine  right  to 
govern  wrong  was  a  favorite  theme  of  a  servile  clergy.'" 

It  was  meet  and  opportune  that  in  their  great  Declara- 
tion our  fathers  should  proclaim  in  politics  the  underly- 
ing, dominant  idea  of  their  religion, — the  fatherhood  of 
God,  the  brotherhood  of  man ;  that  they  should  seek  to 
teach  men  a  proper  appreciation  of  their  individual  worth ; 
that  they  are  all  equally  the  children  of  a  common  Father. 

Lincoln  is  at  once  the  best  product  and  the  best  inter- 
preter of  the  maxims  of  the  Declaration  of  Independence. 

"The  fathers  intended,"  he  says,  "to  set  up  a  standard 
maxim  for  free  society,  which  should  be  familiar  to  all  and 
revered  by  all;    constantly  looked  to,   constantly  Lincoln 

labored  for,  and,  even  though  never  perfectly  Explains  and 
attained,  constantly  approximated.  Its  author  Defe°h* 
meant  it  to  be,  as,  thank  God,  it  is  now  proving  Declaration 
itself,  a  stumbling-block  to  all  those  who,  in  after  of  inde- 

,      ,        .     .  pendence. 

times,  might  seek  to  turn  a  free  people  back  into 
the  hateful  paths  of  despotism.     They  knew  the  proneness  of 
prosperity  to  breed  tyrants,  and  they  meant,  when  such  should 
reappear  in  this  fair  land  and  commence  their  avocation,  they 
should  find  left  for  them  at  least  one  hard  nut  to  crack." 


These  principles  have  led  to  the  recognition  of  certain  rights 
in  the  common  law  and  to  certain  constitutional  guarantees 
that  have  been  incorporated  into  our  fundamental  law — written 
and  unwritten, — guarantees  that  should  be  applied  to  all  peo- 
ples under  the  control  and  sovereignty  of  our  government. 

i.  The  equality  of  all  citizens  before  just  laws  of  their  own 
enactment.  Equal  rights  for  all,  special  privileges  for  none, — 
the  fundamental  maxim  of  American  Democracy. 

2.  No  person  shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law. 

1  Lilly,  First  Principles  of  Politics,  p.  36. 

2  Lincoln's  speech  on  the  Dred  Scott  decision,  Johnston  and  Woodburn's 
American  Orations,  vol.  iii.,  p.  164. 


44  The  American  Republic 

3.  Private  property  shall  not  be  taken  for  public  use  without 
just  compensation. 

4.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the 

right  of  a  speedy  and  public  trial,  shall  be  informed 
Principles  °*  t^ie  nature  and  cause  of  the  accusation,  shall  be 
incorporated  confronted  with  the  witnesses  against  him,  and  have 
American  compulsory  process  for  obtaining  witnesses  in  his 
System  of  favor,  and  the  assistance  of  counsel  for  his  defence. 
Government.  ^  Excessive  bail  shall  not  be  required,  nor  ex- 
cessive fines  imposed,  nor  cruel  and  unusual  punishment 
inflicted. 

6.  No  person  shall  be  put  twice  in  jeopardy  for  the  same 
offence,  or  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself. 

7.  The  right  to  be  secure  against  unreasonable  searches  and 
seizures  shall  not  be  violated. 

8.  Neither  slavery  nor  involuntary  servitude  shall  exist,  ex- 
cept as  a  punishment  for  crime. 

9.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 
10.   No  law  shall  be  passed  abridging  the  freedom  of  speech, 

These  or  °^  tne  Press>  or  the  right  of  the  people  peaceably 

Principles  to  assemble  and  petition  the  Government  for  a  re- 
Find  Support   j  r 

.    „      vv       dress  of  grievances. 

in  Con-  t> 

stitutionai  11.   No  law  shall  be  made  respecting  the  estab- 

Guarantees.  iishment  0f  religion,  or  prohibiting  the  free  exercise 
thereof, — and  no  person  demeaning  himself  in  an  orderly 
manner  shall  ever  be  disturbed  on  account  of  his  religious 
sentiments  or  his  mode  of  worship.1  There  shall  be  a  total 
separation  of  Church  and  State,  for  the  sake  alike  of  civil  and 
religious  freedom. 

12.  The  diffusion  of  information  and  arraingment  of  all 
abuses  at  the  bar  of  public  reason, — involving  the  faithful  ed- 
ucation of  the  rising  generation  that  they  may  enjoy,  preserve, 
and  transmit  the  conditions  essential  to  their  political  happi- 
ness. 

13.  Peace,  commerce,  and  honest  friendship  with  all  nations, 
entangling  alliances  with  none.2 

1  Ordinance  of  1787.  2  Jefferson's  First  Inaugural. 


The  Principles  of  the  Fathers  45 

14.  The  support  of  the  State  governments  in  all  their  rights 
as  the  most  competent  administrators  of  our  domestic  con- 
cerns, and  the  surest  bulwark  of  anti-republican  tendencies.1 

15.  The  preservation  of  the  General  Government,  in  its 
whole  constitutional  vigor,  as  the  sheet-anchor  of  our  peace  at 
home  and  safety  abroad.1 

16.  A  jealous  care  of  the  right  of  election  by  the  people.1 

17.  Absolute  acquiescence  in  the  decisions  of  the  majority, 
the  vital  principle  of  republics,  from  which  there  is  no  appeal 
but  to  force,  the  vital  principle  of  despotism.1 

"These  principles  form  the  bright  constellation  which  has 
gone  before  us  and  guided  our  steps  through  an  age  of  revo- 
lution and  reformation."2  These  are  the  principles  of  the 
American  Democracy  for  which  our  fathers  lived.  They  are 
as  essential  to  the  happiness  and  the  prosperity  of  the  nation 
in  our  day  as  in  theirs.  It  is  right  that  young  Americans 
should  do  as  their  fathers  did,  and,  for  the  maintenance  of 
these  principles  in  the  life  of  the  nation,  mutually  pledge  to 
one  another  "their  lives,  their  fortunes  and  their  sacred 
honor." 

REFERENCES. 

1.  Burke,  Edmund,  Reflections  on  the  French  Revolution,  citing  Price's 

Sermon  on  Love  of  Country,  November  4,  1789;  Appeal  from  the 
New  to  the  Old  Whig',  citing  Lechmere's  Speech  in  the  Trial  of 
Sacheverell.     State  Trials,  vol.  v.,  p.  651. 

2.  Stephen,  Leslie,  History  0/  English  Thought,  vol.  ii. 

3.  Locke,  John,  Treatises  on  Government  (1690)  ;  Letters  on  Toleration 

(1689).  The  first  was  a  reply  to  Sir  R.  Filmer  ("  Patriarcha  "),  who 
defended  absolute  monarchy.  Locke  wrote  in  justification  of  the 
Revolution  of  1688. 

4.  Sidney,   Algernon,    Discourses   on    Government.     Both   Locke   and 

Sidney  accepted  the  compact  theory,  as  between  king  and  people, 
which  became  the  orthodox  Whig  doctrine. 

5.  Priestley,  Treatise  on  Civil  Government  (1768). 

6.  Price,  Observations  on  Civil  History  (177 '5). 

7.  Bentham,  Jeremy,  Fragment  on  Government. 

8.  Paine,  The  Rights  of  Man. 

9.  Mackintosh,  Vindicice  Gallicce. 

'Jefferson's  First  Inaugural.  'Jefferson,  Inaugural  Address. 


46  The  American  Republic 

10.  Godwin,    Wm.,  Political  Justice.     Paine,   Mackintosh,  and  Godwin 

wrote  in  opposition  to  Burke's  Reflections. 

11.  Lf.cky,  History  of  England  in  Eighteenth  Century,  vol.  i.     See  refer- 

ences, p.  g,  on  Divine  Right. 

12.  Ritchie,  David  G.,  Studies  in  Political  and  Social  Ethics.     Chapter 

on  "  Equality." 

13.  Hooker,  "  Ecclesiastical  Polity'"  (1594). 

14.  Lowell,  Essays  on  Government,     iv. ,   "The  Theory   of   the   Social 

Compact." 

15.  Grotius,  De  Jure  Belli  et  Pads,  Introduction  and  the  first  chapters 

on  the  nature  of  law,  (1625). 

16.  Milton,   The  Tenure  of  Kings  and  Magistrates,  (1649).     Written  in 

justification  of  the  execution  of  Charles  I. 

17.  Hobbes,  Leviathan,  (1651),  written  in  support  of  Absolute  Monarchy. 

18.  Austin,  John,  Jurisprudence. 

19.  Roscher,    Political   Economy.       Notes   to   Section    LXXIX.       See 

references  to  authorities  on  the  spread  of  socialistic  ideas. 

20.  Marsiglio,  of  Padua  (1324).       The  laws  ought  to  be  made  by  all  the 

citizens.  Marsiglio  based  this  sovereignty  of  the  people  upon  the 
greater  likelihood  of  the  laws  being  better  obeyed,  and  being  good 
laws  when  made  by  the  whole  body  affected. 

21.  Rousseau  (1751,  1753,  1762). 

22.  "  Equality,"  essay  by  Chas.  Dudley  Warner,  in  Relation  of  Life  to 

Literature  (1897). 

23.  Morley,  John,  Essay  on  Rousseau. 

24.  The  Outlook,  Editorial  on  "The  Principles  of   the  Fathers,"  May  20, 

1899  ;  on  "  Concerning  Self-Government, "  May  27,  1899. 

25.  Abbott,  Lyman,  The  Rights  of  Man,  Chapter  III. 


CHAPTER   II 

THE   FEDERAL  NATION 

ARISTOTLE,1  the  father  of  political  science,  taught 
long  ago  what  every  schoolboy  is  supposed  to  know- 
in  these  days,  that  there  are  three  forms  of  gov-  Forms  of 
ernment :  Monarchy,  Aristocracy,  Democracy.  Government. 

Monarchy  is  the  rule  of  an  individual.  This  is  the  form 
of  government  under  which  the  sovereignty  of  the  state 
is  vested  in  the  hands  of  a  single  ruler.  If  the  political 
powers  of  the  individual  are  unlimited  by  law,  if  they 
are  exercised  at  his  own  will  without  restraint,  we  have 
an  unlimited  or  absolute  monarchy.  If  the  monarch's 
powers  are  limited  by  the  law  of  a  constitution,  we 
have  a  limited,  or  constitutional,  monarchy.  Very  few 
civilized  countries  now  retain  the  form  of  an  absolute 
monarchy.  We  speak  further  of  this  form  of  government 
under  the  term  "Despotism." 

Aristocracy  is  the  rule  of  a  minority,  of  a  superior  few. 

Strictly,  an  Aristocracy  is  a  government  of  the  few  best 
citizens  exercised  for  the  best  interests  of  the  state.2 

A  Democracy  is  the  rule  of  a  majority,  of  the  masses, 
exercised  for  the  common  interests. 

Of  the  three  forms  of  government  in  his  classification 
Aristotle  conceived  that  each  had  its  perverted  form. 
There  were  three  normal,  or  good  forms  and  Perverted 
three  bad,  or  perverted  forms.  Forms. 

Pervert  Monarchy  and  you  have  a  Despotism  or  a 
Tyranny. 

1  Aristotle  lived  from  384  to  322  B.C.  2  See  pp.  39,  40,  49. 

47 


48  The  American  Republic 

Pervert  Aristocracy  and  you  have  an  Oligarchy. 
Pervert  Democracy  and  you  have  a  Mobocracy.1 
The  perverted  forms,  then,  are : 

i.  A  Despotism,  or  Tyranny.  This  is  like  the  absolute 
monarchy, —  a  government  in  which  the  power  of  the 
a  Despotism  monarch  is  not  constitutionally  limited.  It  is 
or  Tyranny,  tne  Yu\e  0f  an  individual  exercised  by  his  own 
will,  or  caprice,  without  control  of  law  or  without  re- 
straint by  any  other  authority.  An  absolute  monarchy  is 
a  despotism.  The  despot  may  be  a  good  man  and  there- 
fore his  government  may  be  a  benevolent  despotism.  But 
he  may  also  be  a  bad  man  and  govern  like  a  tyrant. 

A  Tyrant  is  a  malevolent  despot,  a  ruler  with  absolute 
power  who  oppresses  the  people  and  governs  in  his  own 
interest.  "A  Tyrant,"  says  Milton,  quoting  St.  Basil, 
"whether  by  wrong  or  by  right  coming  to  the  throne,  is 
he  who,  regarding  neither  law  nor  the  common  good, 
reigns  only  for  himself  and  his  faction."2  To  the  Greek, 
in  Aristotle's  day,  the  tyrant  was  one  who  seized  upon 
power  irregularly  and  lawlessly,  like  a  usurper,  without 
color  of  title.  The  usurping  tyrant  was  not  necessarily 
a  bad  ruler  who  oppressed  the  people.  He  might  find 
his  interests  best  subserved  by  mild,  wise,  and  benevolent 
government,  and  he  often  provided  a  better  government 
than  that  which  he  overthrew.  But  in  our  modern  sense 
a  tyrant  is  an  absolute  ruler  who  governs  oppressively. 
While  some  absolute  rulers  may  be  wise  and  good,  pro- 
moting good  government  in  a  capable  way ;  and  while,  on 
the    other   hand,   democracies   may   sometimes   exercise 

1 1  give  here  the  ideas  but  not  the  terms  of  Aristotle.  For  our  word 
' '  Democracy  "  he  used  the  term  ' '  Polity. "  He  used  ' '  democracy  "  as  a  per- 
version of  "polity,"  as  equivalent  to  our  "mobocracy,"  or  the  rule  of  the 
unregulated  mob.  In  Aristotle's  day  the  democracy  of  the  Greek  cities, 
especially  of  Athens,  was  a  degenerate  rule,  the  rule  of  the  incompetent, 
uneducated  masses,  moved  without  law,  and  by  excitement  and  passion. 

2  Milton's  Tenure  of  Kings  and  Magistrates. 


The  Federal  Nation  49 

tyranny,  governing  in  as  capricious,  arbitrary,  and  des- 
potic a  manner  as  any  single  monarch,  yet  we  usually 
think  very  properly  that  the  absolute  monarchy  is  the 
most  inconsistent  with  free  government.  "Monarchy 
unaccountable  is  the  worst  form  of  tyranny  and  least  of 
all  to  be  endured  by  free-born  men."1  This  judgment 
of  Aristotle,  expressed  more  than  two  thousand  years 
ago,  is  confirmed  by  history  and  modern  opinion.2 

2.  An  Oligarchy  is  the  rule  of  the  few,  exercised  at 
their  own  behest.     In  modern  conception  the  The 

oligarchy  may  be  :  oligarchy. 

(i)  An  Aristocracy  of  landed  and  hereditary  privileges, 
who  use  the  government  for  their  own  benefit,  or, 

(2)  A  Plutocracy ,  the  rule  of  the  rich,  by  means  of  con- 
stitutions and  laws  giving  special  privileges  and  power  to 
wealth  and  property.     Under  such  a  govern-  The 

ment  the  few,  by  means  of  their  wealth,  corrupt  Plutocracy. 
or  force  the  people  into  subjection.  This  is  the  most 
vicious  and  corrupting  of  all  forms  of  government,  and 
under  it  the  people  are  the  most  dependent. 

The  distinction  between  Aristocracy  and  Oligarchy  has 
been  largely  obliterated.  The  two  terms  are  often  used 
as  convertible.      But  this  distinction  is  worthy  „..       ,        . 

J   Oligarchy  and 

of  notice :  The  Oligarchy  commonly  denotes  Aristocracy 
the  government  of  a  wealthy  minority  in  its  omPare 
own  interest,  and  it  always  has  a  bad  signification,  while 
Aristocracy,  though  usually  quite  objectionable  to  the 
advocate  of  a  Democracy,  may  have  a  good  significa- 
tion.     By  its  original  meaning  and  in  its  true  sense  an 

■Aristotle's  Politics,  Bk.  IV.,  ch.  x. 
"  Benevolent  despotism  "  is  an  expression  frequently  used  to  excuse  the 
subjection  of  weaker  peoples  to  superior  force.  The  weakness  of  human 
nature  is  such  that  it  cannot  endure  the  temptations  of  irresponsible 
power ;  and,  as  a  matter  of  fact,  a  benevolent  despotism  has  been  such  a 
rare  phenomenon  in  the  history  of  the  world  that  most  reasonable  men  are 
disposed  to  allow  a  people  to  govern  themselves  badly  rather  than  to  sub- 
ject them  to  the  unrestrained  power  of  any  man,  or  small  set  of  men. 


50  The  American  Republic 

Aristocracy  suggests  the  "government  of  persons  especi- 
ally qualified  by  experience,  training,  and  abilities  for  the 
work  of  government."  '  If  we  look  merely  to  the  quality 
of  the  government  and  not  to  the  character  and  develop- 
ment of  the  people  to  be  governed,  no  one  can  reasonably 
object  to  a  true  Aristocracy.2  If  there  were  a  fair,  safe 
way  of  choosing  such  competent  persons  to  govern,  and 
if  guarantees  could  be  had  that  they  would  govern  in  the 
interest  of  all  and  not  chiefly  in  the  interest  of  a  class,  it 
would  be  readily  agreed  that  such  would  be  the  most  de- 
sirable of  all  forms  of  government.  The  difficulty  is  not 
in  agreeing  that  the  best  and  most  competent  persons 
should  rule,  but  rather  in  finding  the  safest  way  of  placing 
such  persons  in  power.  It  must  be  borne  in  mind  that 
the  motive  with  which  one  rules  is  a  vital  factor  in  deter- 
mining the  competency  and  virtue  of  a  government.  If 
power  is  not  exercised  unselfishly  for  the  benefit  of  all, 
the  government  is  seriously  vitiated.  It  is  the  claim  of 
Democracy  that  the  chief  end  of  government — the  edu- 
cation of  the  people,  "the  greatest  good  to  the  greatest 
number" — is  best  secured  by  the  democratic  representa- 
tive system. 

Turning  again  to  the  Oligarchy,  we  notice  that  it  is 
usually  a  plutocracy,  but  not  necessarily  so.  When,  be- 
The  fore  our  Civil  War,  a  slave-owner  in  Mississippi 

oligarchy  with  one  thousand  slaves  had  as  much  political 
"  power  at  Washington  as  six  hundred  free  men 
in  Ohio,  he  was  called  an  oligarch,  and  the  government 
of  the  slave-master  class  in  -the  South  was  called  an  oli- 
garchy. A  comparatively  few  slave-owners  exercised 
dominant  power  in  the  State.  Since  the  war,  the  white 
democracy  in  the  South  has  triumphed  over  the  former 
landed,  slaveholding  oligarchy.  When  the  English  barons 
at  Runnymede  forced  from  King  John  the  Magna  CJiarta 
and,  in  effect,  became  the  chief  power  in  the  realm  for  a 

1  Sidgwick,   The  Elements  of  Politics,  p.  5S2.  2  See  pp.  39,  40. 


The  Federal  Nation  51 

number  of  years,  constraining  the  King  to  do  their  will, 
in  the  days  before  the  common  people  came  to  political 
power  in  Parliament, — these  barons  constituted  then  an 
Oligarchy.  They  represented  wealth  partly,  but  more 
especially  landed  estates  and  political  privileges. 

3.  Mobocracy,  the  third  perverted  form,  is  the  rule  of 
the  ignorant,  unenlightened  mob,  without  restraint  of 
law.     This    has    been   well   called   "the   noisy 

Mob    rule. 

prelude  to  anarchy."     Mobocracy  marks  not  a 
form  of  government,  but  rather  the  absence  of  govern- 
ment.    The  term  "ochlocracy"  is  applied  to  this  form  of 
rule  by  the  multitude. 

Besides  the  forms  of  government  which  we  have  men- 
tioned,— monarchy,  aristocracy,  democracy,  despotism, 
tyranny,  oligarchy,  plutocracy,  and  mobocracy,  there 
are  others  recognized  by  political  science  and  observed  in 
political  history  which  do  not  seem  to  be  provided  for  in 
the  various  forms  suggested  by  Aristotle's  classification. 

A  Theocracy  is  a  form  of  government  in  which  no  hu- 
man authority  is  recognized  as  the  final,  ultimate  source 
of  authority,  but  in  which  the  supreme  power  Theocrac 
is  attributed  to  God,  while  the  men  who  exer- 
cise rule  are  but  the  servants  and  vicegerents  of  the  un- 
seen ruler  The  Mosaic  State  of  the  Jews,  or  of  Joshua, 
and  the  Papal  States  of  mediaeval  times,  are  cases  in  illus- 
tration. A  Theocracy  is  the  rule  of  priests,  or  some 
form  of  Church  government.  The  Early  Puritan  State 
in  Massachusetts,  or  the  government  of  the  Presbyterian 
Kirk  in  Scotland,  when  the  Church  ruled  the  State,  are 
cases  in  point. 

Bureaucracy  is  a  government  by  the  office-holders,  each 
department  being  under  the  control  of  a  chief,  each  chief 
being  responsible  to  some  central  head.  Under  such  a 
system  few  interests  are  left  to  private  individuals,  and 
the  interference  of  the  state  is  carried  to  an  extreme  ex- 
cess.    Everything  is  regulated  by  officialism.      It   is  a 


52  The  American  Republic 

system  of  over-government.  The  officials  become  a  class 
outside  of  and  above  the  people.  They  inflict  upon  the 
people  the  evils  of  neglect  where  government  agencies 
are  needed ;  of  too  much  interference  where  the  people 
should  be  left  alone ;  often,  of  bad  management  and  cor- 
ruption, and  of  domineering  and  autocratic  conduct  on 
the  part  of  the  officials,  and  of  consequent  humiliation  to 
all  citizens  who  have  to  come  into  personal  contact  with 
authority.  The  most  complete  form  of  Bureaucracy  on 
a  large  scale  is  that  furnished  by  Russia.  But  it  is  not 
exclusively  connected  with  any  particular  form  of  govern- 
ment. All  modern  governments,  including  America,  are 
more  or  less  corrupted  by  it.  It  has  been  said  that 
Bureaucracy  is  the  "only  form  of  government  for  which 
the  philosopher  can  find  no  defence."  2 

Militarism  should  also  be  noticed  in  a  study  of  govern- 
ment.     Militarism  is  a  system  under  which  government 
if  not  exercised  is  at  least  controlled  by  mili- 

Militarism.  ...  ,  TT      ,  ,   . 

tary  force  and  by  a  military  class.  Under  this 
system  undue  prominence  is  given  to  military  training 
and  military  glory,  and  the  military  class  are  the  domi- 
nant factor  in  the  state.  Militarism  cultivates  pride  of 
rank  among  the  official  class  and  an  esprit  de  corps  which 
leads  the  military  to  stand  by  the  interest  of  their  class 
often  at  the  expense  of  justice  and  the  public  welfare. 
It  leads  generally  to  the  assertion  of  arbitrary,  arrogant, 
and  domineering  power  over  the  masses.  The  system 
involves  large  standing  armies  whose  burdens  are  heavy 
upon  the  people.  It  divests  the  freeman  of  all  political 
power,  and  subordinates  the  civil  interests  of  men  to  the 
military.  It  exalts  authority  and  disregards  liberty,  re- 
quiring among  its  subjects  unquestioning  obedience.  It 
looks  upon  the  citizen  as  a  soldier,  present  or  prospective, 
and  it  tends  to  cultivate  among  its  subjects  false  and  flat- 
tering obeisance,  subserviency,  and  servility.     As  a  system 

1  See  Lalor's  Cyclopcedia  of  Political  Science. 


The  Federal  Nation  53 

of  government,  Militarism  is  the  most  hateful  to  self-re- 
specting freemen.  It  cannot  be  said  to  mark  the  absence 
of  all  law,  for  it  has  its  martial  law,  its  martial  courts,  and 
its  orderly  modes  of  procedure.  It  is  most  efficient  in  pre- 
serving order  and  enforcing  authority  and,  when  well  and 
honestly  officered  and  administered,  in  providing  good 
and  efficient  administration.  But  it  may  be  said  to  mark 
the  absence  of  all  civil  law  and  constitutionalism.  "In 
the  midst  of  arms  laws  are  silent."  Military  rule  is  abso- 
lute and  autocratic ;  it  is  organized  to  suppress  resistance 
and  is  the  farthest  removed  from  anything  like  self-gov- 
ernment. It  is  a  system  which  will  not  be  tolerated  by 
enlightened,  self-governing  men,  except  under  stern  neces- 
sity for  the  public  defence.  Militarism  is  especially  dis- 
tasteful to  a  democracy,  where  equality  of  rights  and 
standing  is  inculcated.  Under  military  rule,  artificial  and 
sometimes  false  standards  of  honor  are  erected ;  socially, 
a  great  gulf  is  fixed  between  the  private  soldier  and  the 
commissioned  officer,  and  the  plain  citizen  is  despised. 
A  free  people  will  always  subordinate  the  military  to  the 
civil  arm.  If  in  times  of  war  and  public  danger  the  mili- 
tary is  permitted  to  suppress  the  civil  power,  the  free 
citizen  will  remember  that  it  is  the  suppression  of  civil 
liberty  for  the  sake  of  the  public  defence,  and  it  will  be 
permitted  only  with  the  feeling  that  the  people  may 
afford  to  ' '  part  with  their  liberty  for  a  while  in  order  to 
preserve  it  forever."  "Military  rule  over  a  civilized 
people  actuated  by  democratic  conviction  is  always  ob- 
jectionable." ' 

1  Gen.  Davis,  in  instituting  civil  government  in  Porto  Rico. 

The  following  will  indicate  how  Militarism  is  regarded  by  an  intelligent 
writer  in  a  military  republic:  "Militarism  causes  economic  ruin,  intel- 
lectual decay,  moral  feebleness,  political  anarchy.  It  is  apt  to  result  in  a 
general,  or  universal,  obligatory  military  service  of  three  or  five  years. 
The  sons  of  the  rich,  through  different  pretexts,  manage  to  escape  with  a 
year  or  less  ;  but  the  sons  of  the  farmers,  of  the  workmen,  and  the  whole 
laboring  class  of  the  nation  remain  three  years  in  the  army.     .     .     .    The 


54  The  American  Republic 

There  should  be  explained,  also,  the  terms  "republi- 
can," "federal,"  "national,"  and  "consolidated,"  which 
we  often  hear  applied  to  governments.  We  may  best 
explain  these  terms  in  connection  with  the  study  of  our 
own  form  of  government. 

It  is  customary  to  say  that  the  United  States  of  America 
is  a  Republic, — that  we  have  a  republican  form  of  gov- 
Repubiican  eminent.  When  the  Constitutional  Convention 
Government.  0f  j^g^  submitted  the  new  plan  of  government 
to  the  people  of  the  States,  Madison  said  that  if  it  should 
be  found  to  depart  from  the  republican  character  its 
advocates  would  be  obliged  to  abandon  it  as  no  longer 
defensible.1  Madison  spoke  with  authority,  and  it  is 
evident  that  the  framers  of  our  Constitution  intended 
to  establish  a  republican  form  of  government.  The  Con- 
stitution says: 

"The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government." 

But  our  Constitution  does  not  define  a  republican  form 
of  government,  and  there  have  been  great  disputes  on 
that  subject.  But  the  general  understanding  is  clear, 
that  a  republican  form  of  government  is  one  in  which  the 
people's  representatives  make  the  laws  and  their  agents 
administer  them,  and  in  which  the  people  also,  directly 
or  indirectly,  choose  the  executive  agents.  It  does  not 
follow  that  the  whole  body  of  the  people,  or  even  the 
whole  body  of  adult  male  competent  persons,  should  be 
admitted  to  political   privileges.     The   law  in  the  State 

barracks  life  is  one  of  idleness,  moral  inertia,  and  low  debauch.  The  in- 
dustrial workman  no  longer  knows  his  trade  ;  the  young  farmer,  after  loaf- 
ing so  long  in  the  wine  shops  of  garrison  towns,  no  longer  desires  to  return 
to  the  soil,  and  agriculture  is  abandoned." — Urbain  Gohier,  author  of 
ISArme'e  contre  la  Nation,  in  New  York  Independent,  on  "  The  Danger  of 
Militarism,"  Jan.  25,  1900. 

1  Federalist,  No.  39,  p.  232,  Lodge  Ed. 


The  Federal  Nation  55 

will  determine  that.1  Many  nations  have  been  called  re- 
publics whose  forms  of  government  did  not  fulfil  our 
conception  of  this  term.  Holland  was  called  a  republic, 
but  no  particle  of  its  supreme  authority  was  derived  from 
the  people.  Rome  was  called  a  republic,  but  Rome, 
under  the  republic,  was  organized  on  a  military  basis,  and 
the  power  of  the  people  was  very  limited.  Venice  was 
called  a  republic,  but  in  Venice  absolute  power  was  exer- 
cised over  the  great  body  of  the  people  by  a  small  body 
of  hereditary  nobles.  Poland  was  called  a  republic,  but 
the  government  of  Poland  was  a  bad  mixture  of  aristoc- 
racy and  monarchy.  Athens  was  called  a  republic,  but  in 
Athens  there  were  ten  slaves  to  one  freeman :  the  ruling 
citizenship  was  a  mere  handful.  Thus  we  may  recognize, 
from  the  history  of  political  science,  several  kinds  of 
republics : 

An  Oligarchic  Republic,  like  Venice.  This  was  a  re- 
public only  in  name ;  only  a  handful  of  nobles  exercised 
their  oppressions  under  an  honorable  title.  varieties  of 

A  Military  Republic,  like  Rome.  This  was  Republics, 
organized  on  a  military  plan  for  military  purposes,  that 
the  whole  power  of  the  State  might  be  used  in  quick, 
united  action  in  conquest  or  defence. 

A  Federal  Republic,  like  Switzerland  or  the  United 
States,  made  up  of  minor  states,  also  republics,  united 
for  common  purposes. 

A  Centralized  or  National  Republic,  like  France,  with 
all  powers  of  government  exercised  by  the  Central  Gov- 
ernment. The  United  States  is,  as  we  shall  see,  partly  a 
Federal  and  partly  a  National  Republic. 


1  Cooley,  Constitutional  Law,  p.  195  ;  Luther  vs.  Borden  (1848) ;  7 
Howard  42  (Rhode  Island  case),  Federalist,  Nos.  21,  43  ;  Boyd,  Cases  on 
Constitutional  Law,  pp.  647-652  ;  Cooley,  Principles  of Constitutional  Law, 
pp.  194-198  ;  Boutwell,  The  Constitution  of  the  United  States  at  the  End  of 
the  First  Century,  pp.  343-350  ;  Texas  vs.  White,  Supreme  Court  Decision, 
7  Wall  700. 


56  The  American  Republic 

A  Democratic  Republic,  like  Switzerland  or  the  United 
States,  in  which  the  sovereign  power  is  derived  from  and 
is  exercised,  either  directly  or  indirectly,  by  the  great 
body  of  the  people. 

Madison,  in  The  Federalist,  after  noticing  various  mis- 
applications of  the  term,  defines  a  republic,  in  substance, 
as  follows: 

"  A  Republic  is  a  government  which  derives  all  its  powers, 
directly  or  indirectly,  from  the  great  body  of  the  people.  It 
Madison's  *s  administered  by  persons  holding  their  offices 
Definition  of  either  during  pleasure  or  for  a  limited  period,  or 
Republic.  during  good  behavior.  It  is  essential  to  such  a 
government  that  it  be  derived  from  the  great  body  of  the 
society,  not  from  a  small  proportion  or  favored  class.  It  is 
sufficient  for  such  a  government  that  the  persons  administer- 
ing it  be  appointed,  either  directly  or  indirectly,  by  the  peo- 
ple ;  and  that  they  hold  their  appointments  by  either  of  the 
tenures  just  specified."  ' 

Briefly,  then,  we  may  say,  that  a  republic  is  a  state  in 
which  the  governmental  power  is  exercised  by  the  people 
through  their  elected  representatives.  This  power,  while 
it  is  derived  from  the  people,  must  be  exercised  under  a 
system  of  legal  and  constitutional  restraints.  The  re- 
public implies  that  the  political  and  social  impulses  of  the 
people  are  to  be  restrained  by  constitutional  forms  through 
which,  only,  the  rule  of  the  people  may  be  made  effective. 
Republican  government  may  virtually  exist  under  mon- 
archical forms,  as  in  England.  There  the  government  is 
essentially  republican  while  nominally  monarchical.  But 
in  the  United  States  the  republican  form  is  specifically 
guaranteed  by  the  Constitution. 

The  republican  theory  demands  that  every  part  of  the 
people  shall  duly  influence  the  acts  of  the  state.  The 
government  shall  not  be  in  the  hands  of  a  class,  or  of  a 

1  The  Federalist,  No.  39. 


The  Federal  Nation  57 

combination  of  classes.  If  a  class  can  do  what  it  will  in 
the  state  it  will  often  do  less  than  justice  toward  other 
classes.  The  republic  requires,  for  instance,  that  the 
state  shall  not  act  in  such  a  way  as  to  bring  the  nation 
into  a  war  for  the  benefit  of  its  aristocracy,  or  of  its  com- 
mercial class,  while  the  war  must  be  paid  for  with  the 
money  and  lives  of  all  the  people.  It  will  therefore  stand, 
not  only  for  equality  of  civil  rights  but  for  an  equal  dis- 
tribution of  political  power.1 

It  will  be  seen,  from  what  has  been  said,  that  ours  is 
not  an  aristocratic  republic,  nor  an  oligarchic  republic, 
but,  rather,  a  democratic  republic, — a  state  in  which  the 
mass  of  the  people  are  represented  in  the  government. 
For  this  reason  our  nation  is  sometimes  called  a  de- 
mocracy. 

A  Democracy  is  the  form  of  the  state  in  which  the 
sovereign    power   is   exercised  by  the   people  A 

themselves.  Democracy. 

In  a  Pure,  or  an  Absolute  Democracy,  the  government 
is  by  the  simple  direct  action  of  the  people,  without  other 
control  than  such  as  their  own  temperance  or 

The 

moral  restraint  may  impose  at  the  time  of  their  Democracy 
assembly.     It  will  be  understood  that  a  puremaAyLBe,either 

J  r  Absolute  or 

democracy  cannot  exist  over  any  considerable  Representa- 
extent    of   territory.      Only    in    little    city    re-  tlve' 

publics,  like  those  of  ancient  Greece  or  mediaeval  Italy, 
could  all  the  citizens  come  together  to  make  the  laws. 
Although  we  may  imagine  the  whole  body  of  the  people 
in  a  very  little  state  making  the  laws  it  is  very  difficult, 
if  not  impossible,  to  imagine  them  as  executing  the  laws. 
They  must  have  their  agents  to  do  this. 

"The  whole  people  cannot  operate  the  government  any 
more  than  the  whole  of  twenty  people  in  an  omnibus  can  drive 
the  horses.    Some  one  must  drive  as  some  one  must  govern."  ' 

1  Hosmer,   The  People  and  Politics.  s  Ibid.,  p.  239. 


5S  The  American  Republic 

The  representative  idea  being  introduced  we  find  the 
Pure  Democracy  shading  into 

The  Representative  Democracy.  Under  this  form  the 
people,  besides  making  the  laws,  elect  executive  and 
judicial  agents  to  carry  out  the  laws.  This  is  a  govern- 
ment in  which  the  actual  governing  power  is  but  one  step 
removed  from  the  people.  The  laws  are  ordered  by  and 
the  governing  agents  are  appointed  by,  and  are  directly 
responsible  to,  the  people.  In  a  government  under  the 
Initiative  and  Referendum,  by  which  the  people  may 
secure  a  vote  upon  a  proposal,  and  by  their  vote  may 
issue  a  mandate  to  the  law-forming  body  to  incorporate 
the  approved  measure  into  law,  and  under  which  the 
enacting,  executive,  and  judicial  officers  are  appointed  by, 
and  are  directly  responsible  to,  the  people, — such  a  gov- 
ernment would  be  a  Representative  Democracy.  Ours 
is  sometimes  called  a  Constitutional  Democracy.  This 
may  be  defined  as  a  government  in  which  the  power  of 
the  people  is  exercised  through  representatives  under 
constitutional  restraints ;  a  state  in  which  the  people  have 
prescribed  for  themselves  in  a  constitution  the  ways  and 
means  by  which  the  people  shall  govern.  The  difference 
between  the  Constitutional  Democracy  and  the  Demo- 
cratic Republic  cannot  be  clearly  defined.  Broadly 
speaking,  the  distinction  lies  in  the  extent  and  directness 
of  popular  power.  In  proportion  as  the  people  rule 
directly,  in  that  proportion  do  we  tend  from  the  Repub- 
lican to  the  Democratic  form.  The  election  of  the  Presi- 
dent, of  United  States  Senators,  and  of  Supreme  Court 
Judges  by  direct  vote  of  the  people  would,  of  course, 
make  our  Government  more  democratic. 

Looking  at  this  subject  historically,  it  is  clearly  evident 
that  the  American  Republic  has  grown  much  more  demo- 
cratic than  it  was  in  1787.  It  was  not  the  intention  of 
the  framers  of  the  Constitution  to  form  a  Representative 
Democracy.     The  power  was  not  to  be  easily  and  immedi- 


The  Federal  Nation  59 

ately  exercised  at  the  popular  behest.  The  final  exercise 
of  power  was,  in  most  cases,  remote  from  the  people. 
The   government  created  by  the  Constitution 

°  J  .  Our  Fathers 

was  a  republic,  with  many  and  strong  constitu-  Made  a  con- 
tional   safeguards    against  the  excesses   of  de-      stitutionai 

°  o  g  Republic, 

mocracy.  The  framers  of  our  Constitution  felt  notaRepre- 
that  the  evils  from  which  they  were  then  suffer-    _  tentative 

■'  Democracy. 

ing  had  "their  origin  in  the  turbulence  and  fol- 
lies of  democracy,  that  the  people  would  be  the  dupes  of 
demagogues,  and  should  have  very  little  to  do  directly  with 
the  government."1  They  therefore  proposed  to  "refine 
popular  power  by  successive  filtrations,"  as  Madison  ex- 
pressed it.  They  would  let  popular  power  filter  up  and 
thereby  become  purer  and  safer  at  the  top.  The  people 
might  choose  a  State  Legislature;  the  State  Legislature 
might  choose  the  National  House  of  Representatives; 
the  House  might  choose  the  Senate ;  the  Senate  might 
elect  the  President,  and  the  President  might  appoint  the 
Supreme  Court,  and  the  latter  body,  with  its  important 
functions  of  interpreting  and  applying  the  law,  would  be 
considered  safely  enough  removed  from  the  people.  As 
Mr.  Bryce  says : 

"The  spirit  of  1787  was  conservative  and  its  constitution 
was  the  least  democratic  of  democracies."  2 

Popular  power  —  democratic  government  —  was  not 
"filtered  "  so  much  as  the  illustration  above  would  indi- 
cate; but  the  principle  of  the  Constitutional  Republic 
with  its  limitations  on  popular  government  is  clearly  in- 
volved in  the  Constitution, — as  seen  in  the  election  of  the 
President,  the  election  of  the  Senate  and  the  appointment 
of  the  Supreme  Court.  In  the  Republic,  as  distinguished 
from  the  Democracy,  not  only  are  the  people  constitu- 

1  Randolph,  Sherman,  and  Gerry  in  the  Constitutional  Convention  of 
1787. 

2  Bryce,  American  Commonwealth,  vol.  i.,  p.  307. 


60  The  American  Republic 

tionally  checked  in  choosing  officers,  but  they  are  also  so 
checked  in  the  making  of  laws.  It  is  an  error  to  suppose 
that  ours  is  a  government  of  the  mere  numerical  majority. 
The  majority  can  govern  in  America  only  as  its  power  is 
exercised  through  constitutional  channels,  and  it  often 
requires  a  largely  preponderant  majority  before  the  ma- 
jority can  overcome  constitutional  checks. 

Our  Republic  is  not  a  centralized  or  consolidated  re- 
public. France  is  a  Centralized  or  consolidated  Republic, 
but  ours  is  a  Federal  Republic.  A  Centralised  Republic 
is  one  in  which  all  governmental  powers  are  centralized 
in  one  sovereign  legislature,  with  all  its  people  thrown 
into  one  mass  to  be  governed  in  all  their  concerns  from  a 
common  centre.  For  convenience  in  administration  the 
people  in  a  large  centralized  republic  may  be  divided  into 
departments  or  provinces  or  counties,  but  these  subdi- 
visions are  subject  to  the  sovereign  will  exercised  at  the 
common  centre,  and  they  exist  for  administrative  pur- 
poses only ;  that  is,  the  divisions  exist  in  order  that  the 
policies  and  the  law  determined  upon  by  the  Central  Gov- 
ernment may  be  the  more  conveniently  and  certainly 
carried  out. 

The  Federal  Republic  is  one  which  is  formed  by  a  union 
of  republics ;  it  is  a  combination  of  republican  States. 
This  form  allows  a  large  and  well-defined  degree  of  inde- 
pendence and  local  self-government  to  the  States,  or 
divisions,  forming  the  Federal  State.1 

"It  is  hardly  necessary  to  enlarge  on  the  merits  of  local 
government.  It  stimulates  and  keeps  alive  political  life  in  a 
way  that  central  government  alone  can  never  do;  it  trains  in- 
dependent politicians  for  the  service  of  the  state;  it  prevents 
the  establishment  of  that  dead  level  of  administrative  uni- 
formity which  is  the  ideal  of  a  central  bureaucracy;  and  it  re- 

1  For  the  merits  and  demerits  of  the  Federal  system,  the  benefits  and 
evils  of  local  self-government,  see  Bryce,  American  Commonwealth,  vol.  i., 
chaps,  xxix.,  xxx. 


The  Federal  Nation  61 

lieves  the  central  government  of  an  immense  amount  of  routine 
duty,  which  the  latter  could  not  perform  satisfactorily."  ' 

"Legislation  from  a  distance,  applied  to  masses  of  men  does 
not  know  how  to  tolerate  variety. ' '  2 

The  Federal  Republic,  and  therefore  the  United  States, 
is  a  composite  State, — a  composite  of  the  Confederation, 
on  the  one  hand,  and  the  Centralized  or  purely 

'  .  r  J       The  United 

National  Republic,  upon  the  other.  While  states  is  a 
ours  is  a  national  government,  it  is  not  entirely  ^e^^T 
national ;  and  while  it  is  federal,  it  is  not  en-  National 
tirely  federal.  It  is  a  complex,  federal-national  RePubl,c- 
Republic.  In  order  to  understand  this  complex  combi- 
nation, it  will  be  helpful,  first,  to  understand  clearly  the 
differences  between  the  government  of  a  Confederation 
and  the  government  of  a  Centralised  State.  Then,  as  a 
composite  between  these  two,  we  may  be  able  to  under- 
stand more  easily  the  nature  of  the  Federation. 

When  smaller  political  bodies,  or  communities,  are 
united  to  form  a  larger  political  community,  the  relation 
of  the  smaller  to  the  larger  is  under  one  of  the  three 
following  forms : 

i.  The  Confederation,  or  the  League.  2.  The  Central- 
ized Nation.     3.   The  Federal  Nation,  or  the  Federation. 

The  distinction  between  these  forms  is  made  clear  in  a 
notable  passage  from  Mr.  Bryce: 

"The  Confederation,  or  the  League,  is  the  form  of  govern- 
ment in  which  a  number  of  political  bodies,  be  they  monarchies 
or  republics,  are  bound  together  so  as  to  constitute 
for  certain  purposes,  and  especially  purposes  of  confederation, 
common  defence,  a  single  body.  The  members  of  or  Leaeue- 
such  a  body,  or  league,  are  not  individual  men,  but  commu- 
nities, and  will,  therefore,  vanish  as  soon  as  the  communities 
which   compose   it   separate    themselves   from    one   another. 

1  Edward  Jenks,  History  of  Politics,  p.  155. 
5  Maccunn,  Ethics  of  Citizenship,  p.  163. 


62  The  American  Republic 

Moreover,  it  deals  with  and  acts  upon  the  communities  only. 
With  the  individual  citizen  it  has  nothing  to  do,  no  right  of 
taxing  him,  or  judging  him,  or  making  laws  for  him;  for  in  all 
these  matters  it  is  to  his  own  community  that  the  allegiance  of 
the  citizen  is  due." 

Such  is  the  Confederation.  It  is  a  mere  union  of  States, 
without  authority  over  individuals.  If  such  a  govern- 
ment, or  central  agency  for  the  States,  needs  money  or 
troops,  it  calls  upon  the  States  for  the  supplies ;  it  makes 
requisitions,  or  requests  the  States  to  furnish  what  is 
needed,  without  authority  to  compel  the  grant.  The 
States  may  respond  in  their  own  way  or  refuse  to  respond. 
Sovereign  power, — final,  supreme  authority — resides  in 
the  States.  Refusal  to  comply  with  a  requisition  may  be 
a  violation  of  the  compact,  or  agreement,  entered  into  by 
the  States  in  their  adoption  of  the  articles  of  confedera- 
tion. But  if  a  State  refuses  to  fulfil  its  obligation  there 
is  no  constitutional  remedy.  If  the  other  States  should 
combine  to  make  war  upon  the  refusing  State  to  coerce 
it  into  the  performance  of  its  obligation,  that  act  would 
be  an  acknowledgment  that  the  League  is  dissolved,  and 
it  would  be  in  the  nature  of  a  conquest  and  would  not 
come  within  the  scope  of  a  constitutional  confederation. 
Even  though  the  power  of  coercion  were  granted  to,  let 
us  say,  two  thirds  of  the  States,  its  exercise  would  result 
in  a  change  of  the  form  of  government. 

"But  in  a  National    Government,"  continues  Mr.  Bryce, 

"which   is   made  up  of  smaller   communities,   these    smaller 

communities  are  mere  subdivisions  of  the  Nation. 

The 

National  They  have  been  created,  or  they  exist,  fosadminis- 
Govemment.  trative  purposes  only.  Such  powers  as  they  possess 
are  powers  delegated  by  the  Nation  and  can  be  overridden  by 
its  will.  The  Nation  acts  directly  by  its  own  officers,  not 
merely  on  the  communities,  but  upon  every  single  citizen; 
and  the  Nation,  because  it  is  independent  of  these  communi- 
ties, would  continue  to  exist  were  they  all  to  disappear." 


The  Federal  Nation  63 

Clearly  this  is  not  a  union.  It  is  a  state  made  up  of 
component  parts,  but  these  parts  were  not  previously 
independent  communities,  or,  if  so,  they  have  ceased  to 
be.  It  is  merely  a  simple,  unified,  centralized  nation,  as 
France,  or  Belgium,  or  Brazil  is  one. 

"Now,"  Mr.  Bryce  goes  on  to  say,  "the  American  Re- 
public corresponds  to  neither  of  these  two  forms,  but  may  be 
said  to  stand  between  them.     Its  Central,  or  Na-  The 

tional,   Government  is  not  a  mere  league,  for  it  Federal 

Nation. 

does  not  wholly  depend  upon  component  communi- 
ties which  we  call  the  States.  It  is  made  up  of  common- 
wealths, but  it  is  itself  a  commonwealth,  because  it  claims 
directly  the  obedience  of  every  citizen  and  acts  immediately 
upon  him  through  its  courts  and  executive  officers.  Still  less 
are  its  minor  communities,  the  States,  mere  subdivisions  of  the 
Union,  mere  creatures  of  the  National  Government,  like  the 
counties  of  England  or  the  departments  of  France.  They 
have  over  their  citizens  an  authority  which  is  their  own,  and 
not  delegated  by  the  Central  Government.  They  have  not 
been  called  into  being  by  that  government.  They  existed  be- 
fore it;  they  could  exist  without  it.  .  .  .  The  Union  is 
more  than  an  aggregation  of  States,  and  the  States  are  more 
than  parts  of  the  Union."  ' 

This  is  an  excellent  description  of  the  Federal  Republic, 
or  the  Federation.  Both  the  Confederation  and  the 
Federation  designate  a  union  of  distinct  States.  But  the 
union  that  forms  a  Federation  creates  a  new  sovereign 
State.  It  is  a  Bimdesstaat,  a  state  made  by  a  union,  not 
merely  a  Staatenbund,  a  union  made  by  states;  it  is  a 
banded  state,  not  merely  a  band  of  states.  In  the  Fed- 
eration the  "several  units  are  legally  and  constitutionally 
united,  and  sovereignty — the  power  of  ultimately  deter- 
mining its  own  legal  competence — resides  in  the  federal 
body."  2     This  sovereignty  is  irrevocably  deposited  with 

1  American  Commonwealth,  vol.  1.,  p.  16,  et  seq. 
8  Willoughby,  The  Theory  of  the  State,  p.  253. 


64  The  American  Republic 

the  Federal  State,  to  be  exercised  through  the  Federal 
Government.  The  States  may  retain  a  limited  inde- 
pendence, constitutionally  defined  rights,  and  a  well-de- 
fined autonomy  in  internal  affairs,  but  the  Federal  State 
not  only  exercises  sovereign  powers,  it  possesses  them  of 
its  own  right ;  it  has  received  not  only  the  delegation  of 
such  posvers  but  the  surrender  of  them.1  Ours  is  a  Fed- 
eral not  a  Confederate  Republic. a 

1  In  contradistinction  to  Calhoun's  position.  See  speech  on  the  Force 
Bill,  Feb.  15,  1833.     Johnston's  American  Orations,  vol.  1.,  p.  312. 

2  "  A  composite,  or  Federal  State,  and  a  system  of  confederated  States  are 
broadly  distinguished  as  follows  :  In  a  Federal  State,  the  several  united 
societies  are  one  independent  society,  or  are  severally  subject  to  one 
sovereign  body  ;  which  through  its  minister,  the  general  government,  and 
through  its  members  and  ministers,  the  several  united  governments,  is 
habitually  and  generally  obeyed  in  each  of  the  united  societies  and  also  in 
the  larger  society  arising  from  the  union  of  all.  In  a  Confederate  State, 
the  several  compacted  societies  are  not  one  society,  and  are  not  subject  to 
a  common  sovereign  ;  or  each  of  the  several  societies  is  an  independent 
and  political  society,  and  each  of  their  several  governments  is  properly 
sovereign  or  supreme.  Though  the  aggregate  of  the  several  governments 
was  the  framer  of  the  confederate  compact,  and  may  subsequently  pass 
resolutions  concerning  the  entire  confederacy,  neither  the  terms  of  that 
compact,  nor  such  subsequent  resolutions,  are  enforced  in  any  of  the 
societies  by  the  authority  of  that  aggregate  body.  To  each  of  the  con- 
federated governments  these  terms  and  resolutions  are  merely  articles  of 
agreement  which  it  spontaneously  adopts  ;  and  they  owe  their  legal  effect, 
in  its  own  political  society,  to  laws  and  other  commands  which  it  makes  or 
fashions  upon  them,  and  which,  of  its  own  authority,  it  addresses  to  its  own 
subjects.  In  short,  a  system  of  Confederated  States  (a  Confederation)  is 
not  essentially  different  from  a  number  of  independent  governments  con- 
nected by  an  ordinary  alliance.  And  where  independent  governments  are 
connected  by  an  ordinary  alliance,  none  of  the  allied  governments  is  sub- 
ject to  the  allied  governments  considered  as  an  aggregate  body  ;  though 
each  of  the  allied  governments  adopts  the  terms  of  the  alliance,  and 
commonly  enforces  those  terms,  by  laws  and  commands  of  its  own  in  its 
own  independent  community.  Indeed  a  system  of  Confederated  States 
and  a  number  of  independent  governments  connected  by  an  ordinary 
alliance  cannot  be  distinguished  precisely  through  general  or  abstract 
expressions.  The  former  is  intended  to  be  permanent,  while  the  latter 
is  intended  to  be  temporary  ;  while  the  ends  or  purposes  embraced  by  the 
compact  are  commonly  more  numerous  and  more  complicated  than  in  the 


The  Federal  Nation  65 

But  the  term  "Federal  government,"  as  we  have  here 
described  it,  has  not  always  been  used  in  this  sense.  We 
have    defined    it    as    opposed    to    Confederate.    „  .     .     . 

r r  J  Federal  and 

But,  in  1787,  it  was  used  in  contradistinction         National 
to  National.     It  then  had  a  different  meaning.      „r„^!p^tS 

o  01  our  tiov- 

It  meant  then  what  we  now  mean  by  Confed-  ernment  Dis- 
erate.  Our  Government  from  1781  to  1787  ,ngms 
was  a  confederate  government,  but  it  was  always  called 
Federal.  It  was  a  government  of  States,  made  by  the 
States,  operating  on  the  States,  or  through  the  States,  and 
it  could  be,  as  it  was,  dissolved  by  the  States.  Its  funds 
were  supplied  by  the  States ;  its  officers  were  appointed 
by  the  States,  paid  by  the  States,  and  could  be  recalled 
by  the  States.  All  this  was  then  understood  to  indicate 
the  essence  of  federation.  Those  in  the  Federal  Conven- 
tion of  1787,  men  like  Paterson,  Martin,  Yates,  and  Dick- 
inson, who  wished  to  continue  that  kind  of  a  government, 
claimed  to  be  Federalists,  friends  of  a  true  federal  gov- 
ernment ;  while  those  in  the  Convention,  like  Randolph, 
Madison,  Hamilton,  Wilson,  King,  and  others  who  wished 
to  form  a  new  kind  of  government,  one  that  would  draw 
its  powers  directly  from  the  whole  body  of  the  people  of 
America  and  operate  directly  upon  the  people  without 
the  intervention  of  the  States, — these  men  were  called  by 
their  opponents  Nationalists.  At  that  time  there  were 
no  Federal  States  in  the  world  as  now  known  to  political 
science,  and  as  we  have  defined  the  federal  nation  in  the 
preceding  paragraph.  The  so-called  Federal  States  of 
that  day  were,  to  speak  accurately,  Confederate  States. 
The  Federal  State  is  of  recent  growth,  a  product  really 
of  the  nineteenth  century ;  while  the  confederate  form  of 
united  states  has  now  almost  dropped  out  of  use  among 

case    of    the    temporary    alliance." — Austin's    Province   of  Jurisprudence 
Determined,  ed.  1861,  pp.  223-224. 

For  further  discussion  of  the  distinction  between  the  Federal  and  the 
Confederated  State,  see  Professor  Willoughby's  able  and  scholarly  work, 
The  Nature  of  the  State,  pp.  253-258. 


66  The  American  Republic 

civilized  peoples.  Therefore  when  we  use  the  term  "fed- 
eral "  in  the  following  passage  we  use  it  as  opposed  to 
"national,"  to  distinguish  between  the  federal  and  the 
national  aspects  of  our  Government ;  we  use  it  in  the 
sense  of  1787,  as  Madison  used  it,  and  as  it  was  under- 
stood in  that  day. 

Mr.  Madison,  in  No.  39  of  the  Federalist,  has  given 
political  science  one  of  the  best  expositions  of  the  com- 
plex, dual  character  of  our  Constitution.  In  order  to 
understand  more  clearly  how  our  Government  is  a  com- 
bination of  the  federal-national  form  we  should  notice 
some  of  its  aspects  as  discussed  by  Mr.  Madison. 

In  explaining  our  Constitution  to  the  people  of  Amer- 
ica, when  he  was  pleading  for  its  adoption  by  them, 
Madison  pointed  out  that  the  new  government 

1.  Our  r  .  fe 

Government  in  its  origin  was  federal,  not  national.  What 
did  he  mean  by  that?  He  meant  that  this 
government  was  to  be  founded  on  the  assent 
and  ratification  of  the  people  of  America,  but  this  assent 
and  ratification  were  to  be  given  by  the  people,  not  as  in- 
dividuals, composing  one  entire  nation,  but  as  composing 
the  distinct  and  independent  States  to  which  they  respec- 
tively belonged.  It  was  to  be  the  assent  and  ratification 
of  the  several  States,  derived  from  the  supreme  authority 
in  each  State.  The  act,  therefore,  establishing  the  Con- 
stitution was  federal,  not  national.  It  was  an  act  of  the 
States.  Both  in  the  Convention  which  made  the  Consti- 
tution and  in  its  ratification  the  people  voted  as  States.1 

1  It  is  an  error  to  state,  as  has  been  done  by  some  writers,  on  the  hypoth- 
esis that  a  purely  national  state  was  created  by  the  American  people  in 
1789,  that  the  State  conventions  which  adopted  the  Federal  Constitution 
were  organs  of  the  Federal  Nation.  This  is  purely  theoretical  and  entirely 
unhistorical.  Such  an  idea  never  occurred  to  political  writers  until  within 
late  years, — until  political  philosophy  came  to  make  a  definition  of  the 
modern  Federal  State  and  to  prove  that  the  American  Republic  was  in  its 
origin  of  that  kind.  See  Burgess's  Political  Science  and  Constitutional 
Law  ;  Willoughby's  Nature  of  the  State. 


Is  Federal  in 
its  Origin. 


The  Federal  Nation  67 

The  new  government  could  result  only  from  the  unani- 
mous assent  of  all  the  States  which  became  parties  to  it. 
This  is  the  meaning  of  federal,  as  here  used.  When  the 
people  act  as  States  in  union  the  act  is  a  federal  act ; 
when  they  act  as  individuals  directly  through  the  nation 
it  is  a  national  act.  The  people  of  the  United  States  en 
masse,  as  one  nation,  never  had  anything  to  do  with,  they 
were  never  called  upon  to  express  themselves  in,  ordain- 
ing and  establishing  this  Constitution.  Our  Government 
in  its  origin  is  federal.  It  was  adopted  by  States.  Not 
by  State  legislatures,  or  State  governments,  but  by  the 
people  directly,  though  organized  in  States  and  acting  as 
States. 

But  if  in  its  origin  the  United  States  Government  is 
seen  to  be  purely  federal,  in  the  sources  from  which  it  de- 
rives its  power  it  will  be  seen  to  be  partly  fed-  2  In  the 
eral  and  partly  national.  Sources  of  its 

The  House  of  Representatives  derives  its  Government 
powers  from  the  people  of  America  directly,  is  Complex, 
That  is,  it  is  constituted  by  direct  representa-  Federal, 
tion  of  the  people  and  is  appointed  to  act  for  partly 

,  ,  ,.  ,    ,  .  r  ~,  National. 

them    by    direct    delegation    of    power.        lhe 
people  are  represented  there  on  the  same  principle  and 
in  the  same  proportion,  usually,  as  they  are  represented 
in  the  legislature  of  one  of  the  States.     So  far  the  Gov- 
ernment is  national  not  federal. 

But  the  Senate  is  based  on  the  States  as  political  and 
co-equal  societies.  The  States  are  represented  on  the 
principle  of  equality  in  the  Senate.  In  this  respect  the 
Government  is  federal,  not  national. 

The  executive  power  is  derived  from  a  compound 
source.  The  immediate  election  of  the  President  is  made 
by  the  States  in  their  political  characters.  But  the  allot- 
ment of  votes  to  the  States  considers  them  partly  as  dis- 
tinct and  co-equal  societies,  partly  as  unequal  members 
of  the  same  society.     To  begin  with,  in  allotting  electoral 


68  The  American  Republic 

votes,  two  votes  are  given  to  each  State.  Statehood  is 
recognized  to  this  extent,  and  so  far  the  source  of  power 
in  electing  the  President  is  federal.  But  in  a  presidential 
election  the  States  are  also  considered  as  unequal  mem- 
bers of  the  same  society.  That  is,  votes  in  the  electoral 
college  are  allotted  to  them,  after  two  are  allotted  to 
each,  in  proportion  to  population.  So  far  the  source  of 
executive  power  is  jiational,  not  federal.  The  eventual 
election,  that  is,  the  election  in  the  last  resort,  is  to  be 
made  by  that  branch  of  the  National  Legislature  which  is 
national  in  its  character;  but  in  this  particular  act  the 
voting  is  to  be  by  States;  the  members  do  not  vote  as 
individual  members  of  the  House,  but  they  are  thrown 
into  the  form  of  State  delegations  from  so  many  distinct 
and  equal  bodies  politic.  Each  delegation,  or  State,  has 
one  vote,  Rhode  Island  or  Delaware  counting  for  as  much 
as  Illinois  or  Ohio.  The  act  of  final  election,  though 
performed  by  a  national  body,  is  purely  federal.  The 
election  is  federal — made  by  States — on  a  national  basis 
of  representation.  Thus  it  will  be  seen  that  in  the  source 
of  executive  power  the  Government  is  mixed  in  character, 
being  partly  federal  and  partly  national. 

But  how  about  the  operation  of  the  Government  ? 
A  federal  government  operates   on   the   political  bodies 

our  composing  the  confederation.1    A  national  gov- 

Govemment  ernment  operates  on  the  individual  citizens  com- 
in  the '°'  posing  the  nation,  in  their  individual  capacities, 
operation  of  By  this  criterion  our  Government  is  national, 
not  federal.  It  operates  on  and  controls  the 
individual  directly.2  It  was  upon  this  quality  of  its  nature 
and  existence  that  the  National  Government,  in   1861, 

1 1t  may  be  well  to  remind  the  reader  that  federal  is  here  used,  not  as  de- 
fined by  modern  political  science,  but  as  understood  in  1787, — in  the  sense 
of  our  term  confederate. 

2  The  trial  of  controversies  to  which  the  States  may  be  parties  is  an  ex- 
ception to  this. 


The  Federal  Nation  69 

proceeded  in  the  war  for  the  Union.  In  1861,  the  ques- 
tion was  not  whether  the  National  Government  could 
coerce  the  States.     It  proceeded  to  coerce,  not 

*■.         Ca.  l     x.   •      1-     •  1        1      •       •  •  t       The  War  for 

tne  States,  but  individuals  in  insurrection.  It  the  union 
used  its  direct  powers,  derived  from  the  people,  Was  a 

,  1  ,       .  .  rr^  Coercion  of 

to  be  used  over  people  in  resistance.  The  war  individuals, 
for  the  Union  was  a  war  of  the  nation  against  notofstates- 
those  resisting  national  authority ;  it  was  not  a  war  be- 
tween the  States.  The  people  of  some  of  the  States  were 
using  their  State  organizations  to  resist  the  national 
supremacy;  but  the  national  authority  disregarded  the 
States  and  proceeded  against  the  individuals  directly. 
The  authority  of  the  National  Government  over  the  citi- 
zens of  every  State  is  immediate  and  direct.  The  co- 
operation of  the  State  government  is  not  required  for  the 
execution  or  operation  of  national  powers.  The  nation 
operates  of  its  own  right  over  its  own  citizens.  The 
Constitution  expects  certain  services  of  the  States.  The 
States  are  expected  to  choose  Senators,  Representatives, 
and  Presidential  Electors;  to  arm  and  equip  its  militia, 
to  maintain  a  republican  form  of  government,  but  the 
National  Government  would  continue  to  perform  its  func- 
tions even  though  the  States  refused  or  neglected  to  do 
these  things.  The  National  Government  does  not  operate 
through  States.1  It  does  not  call  on  the  States  for 
funds,  nor  issue  orders  to  the  States  in  order  to  have  its 
laws  and  commands  executed,  nor  does  it  require  the 
State  to  submit  its  laws  to  national  authority  for  in- 
spection and  approval.  To  the  extent  to  which  the 
National  Government  has  a  right  to  exercise  authority 
over  individuals  it  operates  as  a  national,  not  as  a  federal 
government. 

1  Of  course  if  the  people  of  all  the  States  should  refuse  to  continue  the 
Government  by  refusing  to  elect  representatives  to  carry  it  on,  the  National 
Government  would  be  suspended.  But  the  law  of  the  Constitution  is  as 
stated  above. 


70  The  American  Republic 

While  we  may  say  that  our  Government  is  national  in 
the  operation  of  its  powers,  what  shall  we  say  when  we 
4.  m  the  Ex-  look  to  the  extent  of  its  powers?  To  what 
tent  of  its       extent  is  our  Government  the  government  of 

Powers  the  °     . 

Government  a  national  State  with  truly  sovereign  powers? 
is  partly         Around  this  question  has  raged  the  great  con- 

National,  M  *>  ° 

partly  troversy  in  our  history. 

Federal.  The  idea  of  a  National  Government  without 

limit  to  its  powers  involves  not  only  an  authority  over 
the  individual  citizens,  but  an  indefinite  supremacy  over 
all  persons  and  things,  so  far  as  they  are  objects  of  law- 
ful government.  Among  a  people  consolidated  into  one 
nation  this  supremacy  is  completely  vested  in  the  National 
Legislature.  We  have  no  such  National  Government  as 
that.  Among  communities  united  for  particular  pur- 
poses, defined  by  the  Constitution  of  the  Union,  this 
supremacy  is  vested  partly  in  the  general  and  partly  in 
the  local  legislatures.  In  the  consolidated  nation  all 
local  authorities  are  subordinate  to  the  supreme,  and 
may  be  controlled,  directed,  or  abolished  by  it  at  pleas- 
ure. In  our  Federal  State,  or  Union,  the  local  authorities 
form  distinct  and  independent  portions  of  the  supremacy, 
no  more  subject  within  their  respective  spheres  to  the 
general  authority  than  the  general  authority  is  subject  to 
them  within  its  own  sphere.  It  is  the  Constitution  that 
defines  these  respective  spheres,  and  limits,  or  assigns, 
the  powers  to  each. 

In  this  aspect  our  Government  cannot  be  said  to  be 
national.  That  is,  it  is  not  fully  national,  like  the  gov- 
ernment of  a  unified,  consolidated  nation.  To  an  extent, 
it  can  exercise  governmental  powers  like  any  nation ;  to 
an  extent  it  cannot  exercise  such  powers,  but  as  to  these 
powers  it  is  purely  federal.  Its  governmental  scope,  or 
jurisdiction,  extends  to  certain  enumerated  objects  only, 
and  leaves  to  the  several  States  a  residuary  and  inviolable 
mass  of  powers  over  all  other  objects. 


The  Federal  Nation  71 

To  understand  this  more  clearly  and  fully,  distinction 
should  be  made  between  sovereignty  and  supremacy,  as 
these  terms  are  frequently  used  in  discussing  our  Distinction 
Government.       In  certain  respects  supremacy         between 

11  111  •  1  Sovereignty 

is  allowed  by  the  sovereign  power  to  the  Na-  and 

tional  Government ;  in  certain  other  respects  supremacy, 
this  supremacy  is  allowed  to  the  State  governments. 
Sovereignty  was  not  retained  in  the  States,  but  a  mass  of 
powers  were  allotted  by  the  sovereign  national  people  to 
be  exercised  by  the  States,  and  while  this  allotment  con- 
tinues the  States  are  supreme  as  to  these  powers.  The 
sovereign  power  resides  in  the  people  of  the  United  States 
organized  into  States.  This  sovereignty  was  exercised, 
or  came  into  being,  in  1787,  through  the  then  Confederate 
Congress  and  the  State  conventions,  in  the  adoption  of 
the  Constitution.  It  may  be  exercised  again  in  amending 
this  Constitution,  or  in  making  a  new  one,  either  through 
a  national  convention,  properly  called,  representing  all 
the  States,  or  through  the  Federal  Congress  and  the  State 
legislatures,  as  prescribed  by  the  Constitution.  In  the 
exercise  of  this  sovereignty  in  1787-88,  the  people  dele- 
gated certain  powers  to  the  National  Government  and  re- 
tained certain  powers  in  the  States.  Neither  the  National 
Government  nor  the  State  government  is  sovereign  in  any 
particular.  The  nation  only  is  sovereign ;  but  it  is  the 
nation  that  is  sovereign,  not  the  National  Government. 
The  National  Government  and  the  States,  through  the 
State  governments,  exercise  particular  powers  of  sover- 
eignty, permitted  by  the  sovereign  power.  Sovereignty 
is  unlimited  power  over  the  members  of  the  State  and  all 
associations  of  its  members.  It  cannot  be  divided.  It 
is  impossible  to  have  two  sovereign  authorities  within 
the  State.  But  the  sovereign  authority  may  divide  the 
exercise  of  sovereign  powers.  It  may  delegate  certain 
supreme  powers  to  one  government  and  certain  other 
powers  to  another.     Our  governments,  both  State  and 


72  The  American  Republic 

National,  are  limited,  not  sovereign,  and  there  is  a  rela- 
tion between  them.  But  the  power  of  the  people  of  the 
United  States  to  alter  these  governments  to  suit  them- 
selves, to  redistribute  the  powers  that  they  now  possess, 
is  unlimited  and  absolute;  that  is,  it  is  sovereign.  The 
organs  through  which  this  sovereignty  is  expressed,  or 
through  which  this  sovereign  power  is  exercised,  are  the 
State  and  National  governments,  or  it  might  be  the 
National  Convention. 

Historically,  then,  the  sovereign  people  of  the  United 
States,  acting  through  the  States,  created  a  Constitution. 
By  the  Constitution  they  erected,  or  recognized,  two 
governments,  Federal  and  State.  To  both  of  these  two 
governments  they  gave  supreme  powers,  the  one  govern- 
ment to  be  supreme  in  certain  respects,  the  other  in  others. 
Hamilton  explained  it  in  this  way : 

"  That  two  supreme  powers  cannot  act  together  is  false. 
They  are  inconsistent  only  when  they  are  aimed  at  each  other, 
or  at  one  indivisible  object.  The  laws  of  the  United  States 
are  supreme  as  to  all  their  proper  constitutional  objects;  the 
laws  of  the  State  are  supreme  in  the  same  way.  These  su- 
preme laws  may  act  on  different  objects  without  clashing;  or 
they  may  operate  on  different  parts  of  the  same  common  ob- 
ject with  perfect  harmony.  The  meaning  of  the  maxim  that 
there  cannot  be  two  supremes  is  simply  this, — two  powers  can- 
not be  supreme  over  each  other."  1 

Webster  speaks  to  the  same  effect.  In  replying  to 
Hayne  upon  the  respective  powers  of  the  State  and  Fed- 
eral governments,  Webster  says : 

"  We  are  all  agents  of  the  same  supreme  power,  the  people. 
The  General  Government  and  the  State  government  derive 
their  authority  from  the  same  source.  Neither  can  in  relation 
to  the  other  be  called  primary,  though  one  is  definite  and  re- 

1  Hamilton  on  the  Constitution  in  the  New  York  Convention,  June  27, 
1788.     See  Johnston's  Representative  American  Orations,  vol.  i.,  p.  50. 


The  Federal  Nation  73 

stricted  and  the  other  is  general  and  residuary.  The  National 
Government  possesses  those  powers  which  it  can  be  shown  the 
people  have  conferred  upon  it,  and  no  more.  All  the  rest 
belong  to  the  State  governments,  or  to  the  people  themselves." 

To  determine  the  extent  of  the  national  jurisdiction 
was  the  purpose  of  the  long  historic  controversy  between 
the  advocates  of  national  power  and  the  advocates  of 
States'  rights.  One  cannot  fully  understand  the  nature 
of  our  form  of  government  unless  he  knows,  in  a  measure, 
the  character  of  that  contention  and  its  outcome.  The 
contention  involved  two  questions: 

i.  What  was  the  nature  of  the  Union  under  the  Con- 
stitution as  to  the  relation  between  the  States  and  the 
Nation? 

If  that  question  was  not  answered  by  the  Constitution 
itself,  in  the  first  place,  it  has  been  answered  by  our  his- 
tory since.  It  is  now  at  rest.  It  is  answered  in  the  de- 
scription we  have  given  of  our  country  as  a  federal  nation. 
The  Union  is  no  longer  to  be  looked  upon  as  a  league. 
It  is  not  a  compact  between  the  States,  dissoluble  at 
pleasure.  It  is  a  nation,  one  and  indivisible.  But  this 
does  not  imply  the  loss  of  distinct  existence  and  the  right 
of  self-government  by  the  States.  "The  preservation  of 
the  States  and  the  maintenance  of  their  governments  are 
as  much  within  the  design  and  care  of  the  Constitution 
as  the  preservation  of  the  Union  and  the  maintenance  of 
the  National  Government.  The  Constitution  in  all  its 
provisions  looks  to  an  indestructible  union  of  indestruc- 
tible States."  ' 

2.  Accompanying  this  question  was  a  second, — What 
were  the  limits  to  the  powers  of  each  government? 

Two  historic  views  were  set  forth  in  answer  to  this 
question.  It  was  properly  a  matter  for  judicial  constitu- 
tional construction.     But  it  became  the  basis  of  division 

1  Supreme  Court  in  the  case  of  Texas  vs.  White,  7  Wall  700.  See  also  p. 
323,  Bryce,  vol.  i. 


74  The  American  Republic 

between  contending  parties  in  their  conflicting  views  of 
the  Constitution.  Each  party  emphasized  one  side  of 
the  truth,  and  it  is  our  purpose  to  notice  to  what  extent 
our  history  and  our  accepted  constitutional  interpretation 
have  reconciled  the  two.  One  view  was  set  forth  by 
Jefferson.  This  great  leader  taught,  quite  rightly,  that 
our  Government  is  a  government  of  limited  powers,  and 
that  those  limits  are  determined,  not  by  the  National 
Government  itself,  but  by  the  Constitution.     He  said : 

"  I  consider  the  foundations  of  the  Constitution  as  laid  on 
this  ground.  All  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States  are  re- 
served to  the  States  or  to  the  people.1  To  take  a  single  step 
beyond  the  boundaries  thus  specifically  drawn  around  the 
powers  of  Congress  is  to  take  possession  of  a  boundless  field 
of  power  no  longer  susceptible  of  any  definition.  Congress 
was  not  given  power  to  provide  for  the  general  welfare,  but  only 
to  lay  taxes  for  that  purpose.  To  consider  the  'general  wel- 
fare '  phrase  as  giving  a  distinct  and  independent  power  to  do 
any  act  they  please  which  might  be  for  the  good  of  the  Union 
would  render  all  the  preceding  and  subsequent  enumeration 
of  powers  completely  useless.  It  would  reduce  the  whole  in- 
strument to  a  single  phrase,  that  of  instituting  a  Congress  with 
power  to  do  whatever  would  be,  in  its  judgment,  for  the  good 
of  the  United  States.3 

"The  government  created  by  the  Constitution  was  not  made 
the  exclusive,  or  final,  judge  of  the  extent  of  the  powers  dele- 
gated to  itself;  since  that  would  have  made  its  discretion  and 
not  the  Constitution,  the  measure  of  its  powers.  The  con- 
struction applied  by  the  General  Government  to  that  part  of 
the  Constitution  which  delegates  to  Congress  a  power  to  make 
all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  powers 3  vested  by  the  Constitution  in  the  Gov- 

1  Tenth  Amendment  to  the  Constitution. 

2  Jefferson's  Opinion  on  the  Constitutionality  of  the  First  United  States 
Bank,    Writings  of  Jefferson,  Ford's  ed.,  vol.  v.,  p.  284. 

3  This  is  the  well-known  expression  of   the  "sweeping  clause"  of  the 


The  Federal  Nation  75 

ernment  of  the  United  States,  or  any  department  thereof,  goes 
to  the  destruction  of  all  the  limits  prescribed  to  their  power 
by  the  Constitution.  Words  meant  to  be  subsidiary  to  the  execu- 
tion of  limited  powers  ought  not  to  be  so  cotistrued  as  to  give  un- 
limited powers,  nor  a  part  so  to  be  taken  as  to  destroy  the  whole 
residue  of  the  instrument. ' '  ' 

Jefferson  held  that  the  very  fact  that  some  powers  were 
specifically  granted  must  be  taken  to  mean  that  those  not 
so  specified  were  withheld,  according  to  the  old  maxim : 
''As  exceptions  strengthen  the  force  of  a  law  in  cases 
not  excepted,  so  enumeration  weakens  it  in  cases  not 
enumerated." 

Such  was  Jefferson's  famous  statement  of  the  doctrine 
of  the  strict  construction  of  the  Constitution.  It  will  be 
seen  from  the  outcome,  as  we  notice  the  conclusions  of 
our  history  and  the  interpretations  of  the  Supreme  Court, 
that  the  doctrine  is  sound  and  unquestionable  to  the  ex- 
tent that  it  teaches  that  our  National  Government  is 
limited  and  not  sovereign  and  plenary  in  its  powers,  and 
that  the  Constitution  and  not  its  own  discretion  defines 
those  limits. 

But  it  was  Hamilton's  office  to  teach,  by  his  doctrine 
of  broad,  or  liberal,  construction,  that  our  Government 
is  a  government  of  implied  powers ;  that  our       Hamilton 

_  ,  j  •  and  Broad 

Constitution  may  be  so  construed  as  to  give  Construction. 
broader,    larger,    and   more    numerous   powers  ourGovem- 

ii  t        .lI  ment  Is  one 

than  Jefferson  would  permit.  In  the  same  of implied 
controversy  that  brought  out  the  expression  Powers, 
from  Jefferson,  Hamilton  said : 

"  There  are  express  and  implied  powers,  and  the  latter  are 
as  effectually  delegated  as  the  former.     There  is  also  another 

Constitution, — supposed  to  sweep  in  all  other  necessary  powers  not  dele- 
gated to  Congress.     It  closes  (is  "subsidiary  to ")  the  list  of  powers  con. 
ferred  on  Congress.     Art.  I.,  Sec.  8,  of  the  Constitution. 
1  Jefferson's  Kentucky  Resolutions,  Arts.  I.  and  VII. 


j6  The  American  Republic 

class  of  powers  which  may  be  called  resulting  powers — resulting 
from  the  whole  mass  of  the  power  of  the  government  and  from 
the  nature  of  political  society  rather  than  as  a  consequence  of 
any  especially  enumerated  power.  For  example,  in  the  con- 
quest of  territory  the  United  States  would  have  sovereign 
jurisdiction  of  it.  Thus  a  power  not  specifically  enumerated 
may  result  from,  or  be  implied  in,  some  or  all  of  the  powers 
vested  in  the  National  Government.  The  only  question,  then, 
is  this:  Has  the  means  to  be  employed  any  natural  relation  to 
any  of  the  acknowledged,  lawful  ends  of  the  government?  The 
test  of  constitutionality  lies  in  the  end  sought.  Is  the  end  in- 
cluded in  the  expressed  powers?  If  it  is  so  included  the  means 
requisite  and  fairly  applicable  are  constitutional.  It  is  an 
axiom  inherent  in  the  idea  of  government  that  a  power  vested 
includes  by  the  force  of  the  term  the  means  requisite  and 
fairly  applicable  to  the  end  sought. 

"The  powers  of  the  Federal  Government  are  sovereign. 
This  includes  by  force  of  the  term  the  right  to  employ  all 
means  not  precluded  by  the  restrictions  of  the  Constitution,  or 
not  immoral,  or  contrary  to  the  essential  ends  of  the  political 
society.  ...  A  Corporation  may  not  be  created  by  the 
United  States  for  superintending  the  police  of  the  city  of 
Philadelphia,  because  the  United  States  are  not  authorized  to 
regulate  the  police  of  that  city.  But  one  may  be  erected  in 
relation  to  the  collection  of  taxes,  or  to  the  trade  between  the 
States,  or  with  the  Indian  tribes ;  because  it  is  the  province  of 
the  Federal  Government  to  regulate  those  objects,  and  because 
it  is  incident  to  a  general  sovereign,  or  legislative,  power  of 
regulating  a  thing,  to  employ  all  the  means  which  relate  to  its 
regulation  to  the  best  and  greatest  advantage.  .  .  .  The 
degree  in  which  a  measure  is  necessary  can  never  be  a  test  of 
the  legal  right  to  adopt  it;  that  must  be  a  matter  of  opinion, 
and  can  only  be  a  test  of  expediency.  The  relation  between  the 
measure  and  the  end, — between  the  nature  of  the  means  em- 
ployed toward  the  execution  of  a  power  and  the  object  of  that 
power, — must  be  the  criterion,  not  the  more  or  less  necessity 
or  utility."  ] 

1  Hamilton's  Works,  vol.  iii.,  pp.  181-189,  Lodge  ed. 


The  Federal  Nation  77 

These  two  constitutional  doctrines,  the  one,  emphasized 
by  Jefferson,  that  our  Government  is  one  of  limited 
powers,  the  other,  emphasized  by  Hamilton,  that  it  is  a 
government  of  implied  powers,  are  recognized  and  com- 
bined by  one  of  the  notable  decisions  of  the  Supreme 
Court  rendered  by  the  great  Chief  Justice  Marshall: 

"  This  government  is  acknowledged  by  all  to  be  one  of 
enumerated  powers.  The  principle  that  it  can  exercise  only 
the  powers  granted  to  it  is  now  universally  admitted.  Marshall 
But  the  question  respecting  the  extent  of  the  pow-  Recognizes 
ers  actually  granted  is  perpetually  arising  and  will  both  limited 
probably  continue  to  arise  as  long  as  our  system  and 

shall  exist.     .     .     .     The  powers  of  the  Govern-  Broad 

,.      .       ,  ,     .  ,       Construction. 

ment  are  limited  and  its  powers  are  not  to  be 
transcended.  But  the  sound  construction  of  the  Constitution 
must  allow  to  the  national  legislature  that  discretion  with  re- 
spect to  the  means  by  which  the  powers  it  confers  are  to  be 
carried  into  execution,  which  will  enable  that  body  to  perform 
the  high  duties  assigned  to  it  in  a  manner  most  beneficial  to 
the  people.  Let  the  end  be  legitimate,  let  it  be  within  the 
scope  of  the  Constitution,  and  all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that  end,  and  which  are  not  pro- 
hibited but  are  consistent  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional."  1 

The  doctrine  of  implied  powers  is  now  well  established 
and  needs  no  further  illustration  or  explanation.  The 
growth  of  power  to  the  General  Government  by  implica- 
tion and  interpretation  is  a  well-known  and  distinguished 
part  of  our  national  history.  But  the  limitations  on 
power  imposed  by  the  National  Constitution  deserves 
further  notice,  since  these  limitations  aid  us  the  better  to 
understand  the  relation  between  the  States  and  the  Fed- 
eral Government. 

It  is  quite  a  common  error  to  suppose  that  the  general 

1  Marshall  in  the  case  of  McCulloch  vs.  Maryland,  1819. 


78  The  American  Republic 

restrictions  of  the  United  States  Constitution  apply  to 

the  several  States,  and  that  by  these  general  restrictions 

and    prohibitions  the   States  are  restrained  in 

Limitations 

of  Powers:     their  governmental  acts.       The  United  States 
The  Restnc-   Constitution  says,  for  instance,  that  "no  person 

tions  of  the  ■'  * 

Constitution    shall  be  held  to  answer  for  a  capital  crime  un- 
lestnc-    jess  on  indictment  of  a  grand  jury  "  ;  that  "in 

tions  on  the  °  J       J        ' 

General  suits  at  common  law  the  right  of  trial  by  jury 

ovemmen  g^vf  foe  preserved";  that  no  one  shall  "be 
subject  for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb."  But  it  is  not  always  understood  that 
these  and  other  provisions  of  the  "Bill  of  Rights  "  apply 
only  to  the  General  Government ;  they  do  not  limit  or 
restrain  the  States.  If  a  State,  through  its  own  consti- 
tution, should  abolish  the  right  of  trial  by  jury,  or  deny 
the  right  of  its  citizens  to  claim  just  compensation  for 
private  property  condemned  for  public  uses,  neither  the 
National  Constitution,  nor  the  national  law  by  the  in- 
terpretation of  its  courts,  would  be  brought  to  bear  to 
prevent.      Unless   the  States   are   specifically 

Unless  the  .  ......  .  .      .  . 

states  are       mentioned,    the    limitations    imposed    by   the 
specifically     United  States  Constitution  are  imposed  on  the 

Mentioned. 

National  Government  only,  not  on  the  States. 
The  United  States  were  forbidden  to  deprive  any  per- 
son of  any  of  the  privileges  guaranteed  in  the  "Bill  of 
Rights."  The  States  might,  in  respect  to  their  own  in- 
habitants, infringe  them  all.  If  the  States  do  not  infringe 
upon  expressed  provisions  of  the  Constitution  especially 
addressed  to  them,  or  upon  those  implied  in  the  whole 
scope  of  that  instrument  and  in  the  grants  of  power  to 
the  General  Government,  they  might  regulate  their  own 
internal  economy  as  seemed  best  to  themselves.  This 
is  brought  out  in  a  notable  decision  by  Chief  Justice 
Marshall : 

"  The  Constitution   was   ordained   and   established  by  the 


The  Federal  Nation  79 

people  of  the  United  States  for  themselves,  for  their  own  gov- 
ernment, and  not  for  the  government  of  the  individual  States. 
Each  State  established  a  constitution  for  itself,  and  Barron  vs- 
in  that  constitution  provided  such  limitations  and  Baltimore, 
restrictions  on  the  powers  of  its  particular  govern-  The  Su^™r \ 
ment   as   its   judgment    dictated.     The   people  of  Decides 

the  United  States  framed  such  a  government  for  ^at  General 

°  Limitations 

the  United  States  as  they  supposed  best  adapted  do  not  Limit 
for  their  situation,  and  best  calculated  to  promote  the  states- 
their  interest.  The  powers  to  be  conferred  on  this  government 
were  to  be  exercised  by  itself;  and  the  limitations  on  power, 
if  expressed  in  general  terms,  are  naturally,  and  we  think 
necessarily,  applicable  to  the  government  created  by  this 
instrument."  ' 

In  this  case  Barron  was  pleading  before  the  Court  that 
the  Fifth  Amendment  to  the  United  States  Constitution, 
forbidding  the  taking  of  private  property  for  public  use 
without  compensation,  ought  to  be  so  construed  as  to 
restrain  the  legislative  power  of  a  State  as  well  as  that 
of  the  United  States;  but  the  Court  denied  his  plea. 

This  is  a  part  of  our  Constitution  so  commonly  mis- 
understood and  of  such  importance  that  it  needs  to  be 
further  amplified.  The  Constitution  of  the  United 
States  was  adopted  in  1787  and  1788  to  form  a  better 
government  than  that  of  the  old  Confederation.  The 
government  created  by  it  was  the  National  Government, 
not  the  State  governments.  The  States  were  already  pro- 
vided with  constitutions  and  governments  of  their  own. 
These  constitutions  generally  contained  provisions  secur- 
ing to  their  people  the  rights  guaranteed  in  the  amend- 
ments subsequently  incorporated  in  the  United  States 
Constitution,  and  known  as  the  "Bill  of  Rights."  These 
amendments  were  incorporated  in  the  United  States  Con- 
stitution as  a  guarantee  that  the  new  government  would 
not  infringe  upon  these  rights  that  had  already  been 
1  Barron  vs.  Baltimore,  1833,  7  Peters,  243. 


So  The  American  Republic 

guaranteed  in  the  written  constitutions  of  the  respective 
States.  It  was  to  the  States  the  people  looked  for  these 
guarantees.  But  they  wished  to  make  assurance  doubly 
sure,  and  they  therefore  also  limited  the  new  National 
Government  in  these  directions.  The  new  Constitution 
was  a  written  instrument  intended  to  serve  as  a  funda- 
mental law  for  the  new  government  which  it  created ; 
and  therefore  it  was  to  that  government,  and  to  it  alone 
(unless  otherwise  expressly  stated),  that  all  of  its  pro- 
visions and  restrictions  apply.  Its  limitations,  therefore, 
rest  only  on  the  Federal  Government.  For  example, 
"No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed."  '  This  prohibits  the  General  Government,  but 
not  the  States,  from  passing  such  enactments.  To  pro- 
hibit the  States  from  passing  such  measures  it  was  neces- 
sary that  the  Constitution  should  say  in  addition,  as  was 
done  in  the  next  section:  "No  State  shall  pass  a  bill  of 
attainder  or  ex  post  facto  law."8  The  rule  of  construc- 
tion is  thus  summarized  by  one  of  the  greatest  of  Ameri- 
can jurists: 

"  To  state  the  rule  of  construction  concisely  it  is  this:  The 
restrictions  imposed  upon  government  by  the  Constitution  and 
its  amendments  are  to  be  understood  as  restrictions  upon  the 
government  of  the  Union  except  where  the  States  are  expressly 
mentioned."  3 

This  Federal  System,  a  Nation  made  by  a  union  of 
States,  provides  for  a  distribution  of  powers  between  the 
two  governments,  State  and  National.  The  constitu- 
tional powers  to  be  exercised  in  America  are  classified 
according  to  this  distribution.  The  classification  is  as 
follows : 

1  Constitution,  Art.  I.,  Sec.  9,  CI.  3.  9  Ibid.,  .Sec.  10,  CI.  I. 

3  Hon.  Thomas  M.  Cooley,  Constitutional  Lmu,  p.  19. 


The  Federal  Nation  81 

i.  Powers  vested  in  the  National  Government  alone. 

2.  Powers  vested  in  the  State  governments  alone. 

3.  Concurrent  powers,  or  those  that  may  be  ex-  classification 
ercised  by  either  State  or  National  Government.  of  Powers. 

4.  Powers  forbidden    to   the   National    Government. 

5.  Powers  forbidden  to  the  States. 

6.  Powers  forbidden  to  both  governments. 

I.   The  first  class  of  powers  are  general  in  their  charac- 
ter, such  as  touch  the  interest  of  all  the  people.      In  early 
days  the  Central  Government  was  looked  upon 
merely  as  a     department  for  foreign  affairs.      conferred  on 
The  States  were  to  be  left  free  to  regulate  all     theCentrai 

0  Government. 

their  domestic  concerns  for  themselves.  Those 
things  that  the  whole  people  can  attend  to  for  all  the 
parts  better  than  any  part  can  attend  to  for  itself  are 
turned  over  to  the  National  Government.  These  are :  (a) 
foreign  relations,  (b)  the  regulation  of  commerce  with 
foreign  countries  and  among  the  States,  (c)  the  making 
of  peace  and  war,  and  the  general  defence  for  which  an 
army  and  navy  may  be  needed,  (d)  coining  money  and 
the  regulation  of  the  currency  and  of  weights  and  meas- 
ures, (e)  the  management  of  the  post-office,  (f)  the  regu- 
lations concerning  naturalization  and  bankruptcy,  (g)  the 
governmental  machinery  for  the  departments  charged 
with  these  purposes. 

2.  The  powers  vested  in  the  States  alone  are  not  named 
in  the  Constitution.  It  is  not  necessary  nor  possible  that 
they  should  be ;  because,  as  we  have  seen  in 

2.  Powers 

considering  the  limitations  on  State  and  Na-  vested  in 
tional  power  imposed  by  the  Constitution,  the  the  states 
States  may  do  all  things  from  which  they  are 
not  prohibited  by  that  instrument.  In  conferring  the 
general  powers  upon  the  National  Government  the  people 
reserved  all  other  powers  to  the  States, — barring  those 
specifically  excepted.  All  unmentioned  governmental 
powers  rest  where  they  rested  before  the  adoption  of  the 

6 


82  The  American  Republic 

Constitution,  that  is,  in  the  States.  The  powers  of  the 
States  are  original  and  inherent.  Those  of  the  National 
Government  are  delegated, — that  is,  they  are 
of  the  state  enumerated  in  and  defined  by  the  Constitution 
Are  original   creating  the  Union.     The  powers  of  the  State 

and  Inherent;        ,  ,  .     ,      ,  .  iitt*  t     • 

those  of  the     belonged  to  it  before  it  entered  the  Union.     It  is 
National         clear  that  this  is  historically  true  of  the  original 

Government  ... 

are  Dele-        thirteen  States ;  and  since  this  is  a  Union  of 
gated  and       equal  States,  then  from  the  constitutional  point 

Enumerated.        L  x 

of  view  this  must  also  be  held  to  be  true  of  the 
later  States,  even  though,  as  an  historical  fact,  as  Terri- 
tories before  becoming  States  of  the  Union  they  exercised 
no  powers  of  government  except  what  were  conferred  upon 
them  by  the  National  Government.  The  powers  of  the 
State,  then,  embrace  all  that  "residuary  mass  of  powers  " 
not  recited  in  the  Constitution  either  as  belonging  to  the 
National  Government  or  as  prohibited  to  the  States.  If 
there  is  a  question  as  to  whether  a  State  can  exercise  a 
power,  the  presumption  is  that  it  can,  unless  it  can  be 
shown  to  have  been  taken  away  by  the  Constitution. 
This  preserves  local  self-government  to  the  people. 

3.  Concurrent  Poivers  are  those  that  may  be  exercised 
by  both  the  State  and  the  National  Government.  It  does 
3.  concurrent n°t  follow  because  a  power  has  been  conferred 
powers.  upon  the  National  Government  that  it  may  not 
also  be  exercised  by  the  State  governments.  There  are 
powers  that  from  their  very  nature  both  governments 
must  be  left  to  exercise,  such  as  the  power  of  taxation, 
the  promotion  of  learning,  and  the  encouragement  of  arts 
and  manufactures.  On  such  subjects  two  legislative  wills 
may  act  at  the  same  time  over  the  same  persons.  The 
exercise  of  such  powers  as  are  essential  to  the  maintenance 
of  a  government,  such  as  the  taxing  power  and  the  direct 
control  of  the  citizen  through  the  operation  of  the  courts, 
must  be  left  to  either  government.  Certain  limitations 
on  the  taxing  power  are  imposed  on  both  governments. 


The  Federal  Nation  83 

Neither  government  can  tax  exports  from  any  State.1 
And  since  "the  power  to  tax  involves  the  power  to  de- 
troy,"  2  no  State,  except  by  the  consent  of  Congress,  may 
tax  any  corporation  or  other  agency  created  for  Federal 
purposes,  or  any  act  done  under  Federal  authority;  nor 
shall  the  National  Government  tax  any  State,  its  agency, 
or  its  property.  Neither  government,  by  the  use  of  the 
taxing  power,  shall  be  able  to  destroy,  or  prevent  the 
effective  operation  of,  the  other.  In  cases  of  conflict  of 
authority  as  to  objects  of  taxation  the  national  authority 
must  prevail  and  its  claims  must  be  satisfied  first,  though 
in  taxation  it  is  not  expected  that  one  power  will  exclude 
the  operation  of  the  other. 

There  are  other  powers  that  are  concurrent,  not  from 
their  nature,  but  because  they  are  specified  as  such  in  the 
Constitution, — subjects  like  bankruptcy  or  matters  relat- 
ing to  the  election  of  Senators  and  Representatives.  But 
if  Congress  acts  on  these  subjects  the  State  laws  relating 
to  them  must  give  way.     "It  is  not  the  mere  „    „ 

fe       _  J  _  The  Exercise 

existence  of  a  national  power,  but  its  exercise,  of  a  National 
which  is  incompatible  with  the  exercise  of  the        _  p°™er 

~  Excludes 

same  power  by  the  States."  3  The  Constitu-  Legislation 
tion  says:  "Congress  shall  have  power  to  es-  yt 
tablish  uniform  laws  on  the  subject  of  bankruptcies."4 
Congress  is  permitted  but  is  not  commanded  by  the  Con- 
stitution to  exercise  such  power.  If  it  does  not  exercise 
the  power,  any  State  may  pass  its  own  bankrupt  laws; 
but  if  Congress  chooses  to  exercise  this  power  its  act 
excludes  all  others :  that  is,  all  State  acts  of  bankruptcy 
fall.  State  legislation  takes  effect  only  in  the  absence  of 
Federal  legislation. 

4.  The  fourth  class  of  powers,  those  forbidden  to  the 

'Constitution,  Art.  I.,  Sees.  9  and  10. 

2  Supreme  Court,  McCulloch  vs.  Maryland,  1819. 

3Cooley,  Constitutional  Law,  p.  35  ;  Sturgis  vs.  Crowninshield. 

*Art.  I.,  Sec.  8,  CI.  4. 


84  The  American  Republic 

National  Government,  are,  for  the  most  part,  included 
in  the  first  ten  amendments.1     The  chief  of  these,  not  also 
forbidden  to  the  States,  are  as  follows: 

4.  Prohibi- 
tions on 
the  National  .    .  . 

Government.       \a)  The  writ  of  habeas  corpus  shall  not  be  sus- 
pended except  when  the  public  safety  may  require  it. 
(/;)  No  capitation  or  direct  tax  shall  be  laid,  except  in  pro- 
portion to  the  population. 

(c)  In  commercial  regulations  no  preference  shall  be  given 
to  the  ports  of  one  State  over  those  of  another. 

(d)  No  money  shall  be  drawn  from  the  public  treasury  but 
in  consequence  of  appropriations  made  by  law. 

(e)  No  law  shall  be  passed  establishing  or  prohibiting  any 
religion,  or  abridging  freedom  of  speech  or  of  the  press,  or  of 
public  meeting  or  of  bearing  arms. 

(/)  No  religious  test  shall  be  required  as  a  qualification  for 
any  office  under  the  United  States. 

(g)  No  person  shall  be  tried  for  a  capital  or  otherwise  in- 
famous crime  unless  on  a  presentment  or  indictment  of  a 
Grand  Jury,  except  in  a  military  or  naval  service;  nor  shall 
any  person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  any  one  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law; 
nor  shall  private  property  be  taken  for  public  use  without  just 
compensation. 

(//)  In  all  criminal  prosecutions  the  right  of  trial  by  jury  in 
the  district  wherein  the  crime  shall  have  been  committed  shall 
not  be  denied  the  accused,  who  shall  be  informed  of  the  nature 
and  cause  of  the  accusation,  be  confronted  by  the  witnesses 
against  him,  and  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  have  assistance  of  counsel  for  his 
defence. 

(/)  In  suits  at  common  law  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 

1  See  also  Art.  I.,  Sec.  9,  of  the  Constitution. 


The  Federal  Nation  85 

examined  in  any  court  of  the  United  States  than  according  to 
the  rules  of  the  common  law. 

(/)  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

5.  The  fifth  class  of  powers,  those  prohibited  to  the 
States,  may  be  briefly  recited  ' : 

'  J  J  5.  Powers 

Prohibited  to 

(a)  No  State  shall  make  any  treaty  or  alliance ;  the  States- 
nor  coin  money;  nor  make  anything  but  gold  and  silver  a  legal 
tender;  nor  pass  a  law  impairing  the  obligation  of  contracts. 

(&)  No  State  shall,  without  the  consent  of  Congress,  lay 
duties  on  exports  or  imports;  nor  keep  troops  or  ships  of  war 
in  time  of  peace;  nor  engage  in  war  unless  actually  invaded  or 
in  imminent  danger. 

(c)  No  State  shall  deny  credit  to  the  records  and  judicial 
proceedings  of  the  other  States;  nor  deny  the  privileges  and 
immunities  of  its  citizens  to  the  citizens  of  other  States;  nor 
establish  any  but  a  republican  form  of  government ;  nor  main- 
tain slavery;  nor  abridge  the  privilege  of  any  citizen  of  the 
United  States  or  deny  to  him  the  right  of  voting  on  account  of 
race,  color,  or  previous  condition  of  servitude;  nor  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of 
law,  nor  deny  to  any  person  the  equal  protection  of  the  law. 

6.  There  are  also  certain  powers  that  are  prohibited 
both  to  the  State  and  the  National  Government.  Neither 
can  grant  a  title  of  nobility,  nor  pass  an  ex  post  6_  Powers 
facto  law  or  a  bill  of  attainder;   nor  deprive     Prohibited 

........  .  .  both  to  the 

any  person  of  life,  liberty,  or  property  without  state  and 
due  process  of  law.2  The  people  have  forbidden  the  Nation, 
any  governmental  agency  in  America  the  right  to  do  these 
things.  As  Mr.  Bryce  expresses  it,  "There  are  things  in 
America  which  there  exists  no  organized  and  permanent 

1  See  the  Constitution,  Art.  I.,  Sec.  10. 

*  Fourteenth  Amendment.  This  was  adopted  since  the  decision  in  the 
case  of  Barron  vs.  Baltimore,  referred  to  on  p.  79.  The  student  should 
refer  in  this  connection  to  the  passages  on  pp.  356  et  seq. 


86  The  American  Republic 

authority  capable  of  legally  doing;  not  a  State,  because 
it  is  expressly  forbidden ;  not  the  National  Government, 
because  it  either  has  not  received  the  competence  or  has 
been  expressly  forbidden."  ' 

But  this  passage  from  Mr.  Bryce,  and  the  conception 
that  our  Government  is  one  of  enumerated  powers  only, 
and  that  it  can  do  only  what  it  has  "received  compe- 
tence "  to  do  by  a  grant  of  powers  that  are  expressed  or 
implied  in  an  enumerated  list, — this  description  does  not 
fully  explain  the  character  of  our  National  Government. 
It  is  true  that  so  far  as  express  prohibitions  are  con- 
cerned, the  people  have  reserved  certain  powers  to  them- 
selves to  be  exercised  only  through  subsequent  grants  of 
power  by  amendments.  But  it  has  been  found  imprac- 
ticable, if  not  impossible,  to  confine  the  National  Govern- 
ment to  a  list  of  recited  and  implied  powers.  The  written 
Constitution  so  intends  and  provides.  But  as  a  matter 
of  fact  the  National  Government  is  more  than 

The  National  .     ,    ,  ,  .      . 

Government  a  government  of  delegated  powers :  it  has  as- 
Has  original  Sumed  power  to  do  other  than  those  things  that 

and  Inherent    ,  . 

Powers  for  have  been  enumerated,  lhere  is  a  sense  in 
National i       which  the  National  Government  must  be  re- 

Purposes. 

garded  as  one  of  original  and  inherent  powers, 
— powers  that  come  to  it  from  the  nature  of  government, 
from  necessity  and  usage  in  government ;  and  also  from  the 
law  of  the  unwritten  constitution.  Hamilton  called  these 
Resulting  resulting  powers.  Implied  powers  are  drawn 
Powers.  from  specific  and  express  grants  of  power. 
Congress  has  power  to  coin  money  and  to  regulate  com- 
merce ;  therefore  Congress  may  establish  a  mint,  build 
lighthouses,  and  improve  harbors.  These  powers  are 
implied  necessarily  in  those  that  are  granted.  But  result- 
ing powers  come  from  the  very  character  of  the  National 
Government  itself  and  from  the  functions  it  has  to  per- 
form,— from  the  whole  scope  and  nature  of  the  Consti- 

1  Bryce,  vol.  i.,  p.  315. 


The  Federal  Nation  87 

tution.  The  National  Government  cannot  be,  under  the 
Constitution,  a  government  of  unlimited  powers;  but 
every  power  essential  to  the  life  and  processes  of  a  nation 
must  be  conceded  to  it.  It  must  be  allowed  to  perform 
every  national  governmental  function  which  any  national 
sovereign  government  can  perform,  from  which  it  is  not 
restrained  by  the  restrictions  of  the  Constitution.1 

"  For  it  would  be  impossible  to  construct  a  government  no 
branch  of  which  can  exercise  a  necessary  power  unless  it  has 
been  granted.  .  '.  .  Whatever  the  written  Constitution 
may  provide  on  this  question,  the  fact  is  that  the  United 
States  Government  does  exercise  powers  which  are  not  dele- 
gated to  it  by  the  written  Constitution.  The  attempt  [to 
interpret  constitutional  law  as  strictly  limiting  the  National 
Government  to  enumerated  powers]  has  resulted  in  the  assump- 
tion by  Congress  of  powers  which  were  not  expressly  delegated 
nor  fairly  implied."  2 

The  extent  to  which  such  necessary  and  natural  powers 
may  be  exercised  by  the  National  Government  has  been, 
as  is  well  known,  a  subject  of  great  discussion.  The  as- 
sumption of  such  powers  has  been  resisted  as  unconsti- 
tutional usurpation ;  but,  as  a  matter  of  fact,  larger  and 
larger  powers  of  this  kind  have  been  established  by  usage, 
from  time  to  time,  and  have  come  to  be  accepted  as  legal. 
From  the  point  of  view  of  constitutional  government  such 
employment  of  original  and  inherent  powers  is  to  be 
looked  upon  as  the  substitution  of  an  unwritten  for  a 
written  constitution,  or  as  an  advance,  so  far,  in  the  de- 
velopment of  our  unwritten  constitution  by  interpreta- 
tion and  usage.3 

I  Even  the  expressed  prohibitions  of  the  Constitution  do  not  restrain  the 
National  Government  from  the  exercise  of  sovereign  national  powers,  ac- 
cording to  the  late  Insular  decision.  But  it  may  be  questioned  whether 
this  is  accepted  as  permanent  constitutional  law. 

*2Tiedeman,   The  Unwritten  Constitution  of  the  United  States,  p.  139. 

II  Professor  Tiedeman  mentions,  as  cases  illustrating  the  employment  of 


88  The  American  Republic 

This  distribution  of  powers  and  the  limitations  on  the 
National  Government  will  enable  us  to  understand  how, 
in  comparing  the  British  Parliament  with  the  American 

original  rather  than  delegated  powers,  the  Louisiana  Purchase  and  the 
Legal  Tender  laws.  These  laws  were  not  delegated  nor  fairly  implied. 
They  were  exercised  and  allowed  because  the  National  Government  was  a 
government,  and,  as  such,  it  was  in  possession  of  sovereign  and  original 
powers  touching  these  subjects.  The  late  decision  in  the  Insular  Cases  is 
a  still  more  forcible  illustration.  (See  p.  385.)  The  question  here  raised,  as 
to  the  exercise  by  the  National  Government  of  original  and  unenumerated 
powers,  is  made  clear  in  the  following  diagram  from  Professor  Tiedeman  ; 


The  whole  circle  represents  the  sum  total  of  governmental  powers; 
circle  A,  powers  delegated  to  the  United  States  ;  circle  B,  powers  reserved 
to  the  States  ;  segment  C,  concurrent  powers  ;  segment  D,  powers  pro- 
hibited to  both  governments  ;  segment  E,  powers  prohibited  to  the  States, 
but  neither  prohibited  nor  delegated  to  the  United  States. 

The  question  for  discussion  is  whether  the  U.  S.  Government  may  exer- 
cise a  power  which  is  prohibited  to  the  States,  but  which  is  neither  pro- 
hibited nor  delegated  to  the  General  Government,  that  is,  the  powers 
represented  in  E.— Tiedeman,   The  Unwritten  Constitution,  p.  138. 


The  Federal  Nation  89 

Congress,  the  government  of  Parliament  may  be  said  to 
be  sovereign  and  constituent  while  the  government  of 
Congress  is  not.  In  contradistinction,  the  gov-  Parliament 
ernment  of  Congress  is  limited  and  representee-  Is,s°ver"gn 

o  ■*  and  Constitu- 

tive.  In  law,  Parliament  is  the  nation.  Its  ent;  congress 
powers  represent  the  sum  total  of  governmental  a'*d  ^m' ree. 
powers.  There  is  no  political  power  above  it  sentative. 
competent  to  restrain  or  overrule  it ;  there  is  no  sphere  or 
field  of  government  in  which  it  may  not  operate,  no  act 
of  government  which  it  may  not  perform.  Congressmen 
represent  the  people  ;  but  Parliament  is  the  people.  Con- 
gress is  the  agent ;  Parliament  is  the  principal.  Congress- 
men have  constituents  separate  from  and  above  them; 
but,  in  law,  Parliament  holds  within  itself  the  constituent 
parts  of  the  nation.  Since  the  constituent  elements  of 
the  nation  are  in  Parliament,  whatever  the  nation  can  do 
in  its  sovereign  capacity  the  Parliament  can  do.  It  is 
not  restrained  by  a  constitution,  because  its  acts  make  up 
the  Constitution,  and  the  courts  accept  and  act  in  har- 
mony with  any  act  passed  by  Parliament.1  "Parliament 
is  the  British  nation  for  every  purpose.  Congress  is  the 
American  nation  only  for  the  purpose  of  exercising  the 
powers  delegated  in  the  Constitution. ' ' 2  For  example,  in 
1 7 16,  the  English  Parliament,  which  had  been  elected  for 
a  term  of  three  years,  passed  the  Septennial  Act,  by  which 
the  members  prolonged  their  own  terms  to  seven  years. 
This  act  was  denounced  as  "unconstitutional";  but  it 
was  unconstitutional  only  in  the  sense  of  being  unusual 
and  unprecedented, — such  a  thing  had  never  been  done 
before.  The  Septennial  Act,  however,  was  perfectly 
valid ;  it  was  accepted  by  the  courts  and  it  has  ever  since 
held  as  law.  Whatever  Parliament  does  is  constitutional. 
But  imagine  members  of  Congress,  having  been  elected 
for  the  constitutional  term  of  two  years,  attempting  by 
their  own  act,  a  law  of  Congress,  to  extend  their  term  to 

1  See  p.  95.        2  C.  F.  Randolph,  Law  and  Policy  of  Annexation,  p.  45. 


90  The  American  Republic 

five  or  seven  years!  Such  an  act,  of  course,  would 
transcend  the  powers  of  Congress;  it  would  be  immedi- 
ately declared  illegal  by  the  courts,  and  any  attempt  by 
Congress  or  its  agents  to  execute  such  a  measure  would 
be  regarded  as  usurpation  and  revolution.  The  body  in 
America  that  would  be  competent  to  do  such  a  thing, 
that  would  be  sovereign  and  constituent  and,  therefore, 
competent  to  act  for  America  as  Parliament  acts  for  Great 
Britain,  would  be  the  Constitutional  Convention  of  all  the 
States  and  the  ratifying  conventions  of  three  fourths  of 
the  States.  This  body  would  be  the  nation,  the  body 
competent  to  make  and  amend  constitutions. 

On  the  other  hand,  Congress  is  limited  by  the  Consti- 
tution and  by  the  division  of  powers  for  which  the  Con- 
stitution provides.  Congress  can  do  only  what  the 
Constitution  allows  and  act  only  in  the  sphere  assigned 
to  it.  It  is  limited  by  the  powers  and  prerogatives  of  the 
President,  and  it  may  be  restrained,  also,  by  the  decisions 
of  the  Supreme  Court.  It  is  representative  in  the  sense 
that  it  must  act  as  an  agent,  not  as  a  principal;  and  as  an 
agent  it  is  responsible  to  its  constituents,  the  sovereign, 
who  have  given  to  Congress  definite  written  instructions 
as  to  what  it  may  do. 

0ur  This  distinction  between  the  government  of 

Government  Parliament  and  that  of  Congress  comes  largely 
written         from  the  fact  that  ours  is  a  government  of  a 

Constitution.    wr{ttcn   COHStihltioil. 

The  constitution  of  a  state  or  nation  is  its  fundamen- 
tal, organic  law  which  determines  its  form  of  government 
and  the  underlying  principles  on  which  its  government 
shall  be  conducted.  If  the  principles,  rules,  and  laws 
determining  the  organic  form  of  the  state  are  embodied 
in  a  single  written  document,  the  government  is  one  of  a 
written  constitution.  But  if  these  rules  and  principles 
are  made  up  from  statutes,  decisions,  and  precedents  that 
have  been  passed  and  rendered  from  time  to  time,  and  if 


The  Federal  Nation  91 

the  fundamental  law  is  found  in  usage  and  custom  based 
on  precedents  and  practices  of  the  past,  the  nation  is  then 
said  to  have  an  unwritten  constitution.  The  United  States 
has  a  written  constitution, — a  document  of  definite  length, 
prescribing  the  rules  and  methods  for  conducting  the 
government.  England  has  an  unwritten  constitution, — 
a  set  of  proceedings  and  long-standing  laws  that  it  has 
been  customary  to  go  by.  An  important  distinction  is 
that  in  a  country  with  an  unwritten  constitution  the  con- 
stitution can  be  changed  by  the  ordinary  legislature,  just 
as  any  law  can  be  amended  or  changed ;  while  in  a  coun- 
try with  a  written  constitution  the  constitution  is  placed 
above  and  out  of  the  reach  of  the  legislature,  being  sub- 
ject to  change  only  by  the  same  superior  authority  that 
created  the  constitution. 

An  unwritten  constitution  is  called  flexible ;  it  is  "one 
that  is  capable  at  any  time  of  being  bent,  turned,  ex- 
panded, or  contracted  "  at  the  will  of  the  supreme  legis- 
lature. It  is  hard  to  change  only  as  a  nation's  habits  are 
hard  to  change.  In  a  government  under  an  unwritten 
constitution  the  National  Legislature  is  absolute ;  it  can 
do  what  it  will.  But  it  feels  bound  to  conduct  the  gov- 
ernment on  principles  that  are  well  known  and  of  record, 
according  to  laws  that  are  written  and  old,  and  according 
to  habits  that  are  deep-rooted  and  revered.  These  are 
pretty  fair  safeguards  against  usurpation,  despotism,  and 
tyranny;  and  therefore  the  government  of  such  a  legis- 
lature, while  absolute  in  law,  is  constitutional  in  practice. 

A  written  constitution  is  called  inflexible,  or  rigid. 
That  is,  it  is  one  that  cannot  be  easily  turned  or  changed. 
It  stands  in  unbending  resistance  against  the  efforts  of  a 
temporary  majority  in  the  legislature  to  override  or  disre- 
gard its  provisions.  Its  terms  are  fixed,  and  they  can  be 
changed  only  by  the  same  slow  and  difficult  process  by 
which  the  constitution  was  made. 

So  far  as  our  Constitution  is  looked  upon  as  purely 


92  The  American  Republic 

written,  to  that  extent  it  is  inflexible.  But  even  the 
written  Constitution  of  America  has  not  proven  entirely 
inflexible  and  rigid.  Any  constitution  that  will  not  bend 
must  break.  A  constitution  must  change  and  expand 
with  the  expansion  and  growth  of  the  country  for  which 
it  was  made ;  it  must  be  able  to  accommodate  itself,  by 
its  flexible,  expansive  qualities,  to  changed  conditions,  or 
it  will  be  laid  aside.  There  is  constant  temptation  under 
a  very  rigid  constitution  to  violate  its  provisions  or  to  dis- 
regard them  by  very  loose  construction.  The  American 
Constitution  contains,  not  statutory  matter,  but  broad, 
fundamental  principles  of  government,  stated  in  general 
terms;  and  therefore  it  has  found  room  to  expand,  not 
only  by  the  written  process  of  amendment,  but  also  by 
the  processes  of  interpretation,  construction,  and  usage.1 
While  our  Constitution  is  generally  spoken  of  as  writ- 
ten, it  is  not  entirely  written.  Usage  has  given  us,  in 
considerable  measure,  an  unwritten  constitution.  There 
are  many  instances  of  constitutional  understandings  in 
America,  practices  and  precedents  having  all  the  force  of 
law,  that  have  been  established  by  usage.  It  is  the  law 
of  the  unwritten  constitution  that 

Presidential  electors  have  no  right  to  exercise  their  discre- 
tion in  voting  for  presidential  candidates ;  they  must  vote  for 
their  party  nominee. 

A  President  may  not  be  elected  for  a  third  term. 

A  President  may  remove  his  appointees  without  asking  the 
consent  of  the  Senate. 

The  House  and  Senate  both  conduct  their  business  by  the 
committee  system,  the  committees  in  the  Senate  being  elective, 
while  in  the  House  they  are  appointed  by  the  Speaker.  This 
has  no  other  basis  than  the  usage  and  standing  order  of  each 
House. 

The  Senate  will  not  refuse  to  confirm  Cabinet  appointments. 

1  See  the  chapter  on  the  Judiciary,  p.  339. 


The  Federal  Nation  93 

A  member  of  Congress  must  reside  in  the  district  from  which 
he  is  chosen. 

The  party  caucus  determines  the  course  of  party  action,  and 
a  resulting  obligation  rests  on  the  individual  members  who 
participate  in  the  caucus  to  obey  the  decision  of  the  caucus 
meeting.  This  relates  to  our  party  constitution.  It  may  be 
said  that  all  our  party  law  regulating  the  constitution  of  our 
party  machinery  and  proceedings  of  party  conventions  is  un- 
written law.  It  consists  of  nothing  but  precedents  and  cus- 
toms ;  and  the  last  legislature  of  the  party,  that  is,  the  delegate 
convention,  may  change  the  party  constitution  at  will.1 

Thus  we  conclude  that  while  our  National  Government 
is  one  of  a  written  constitution,  this  has  not  made  it 
inflexibly  rigid,  nor  prevented  it  from  expanding  by  con- 
struction and  usage;  that  while,  it  is  limited  in  its  func- 
tions, it  may  exercise  original  and  inherent  powers,  as 
any  sovereign  nation  may,  in  matters  essentially  national ; 
that,  while  it  is  a  democratic  republic,  its  democracy  is 
limited  by  constitutional  safeguards ;  and  that,  while  it  is 
national,  it  is  also  federal.  //  is  a  complex,  federal- 
national,  democratic  republic,  not  consolidated,  but  fed- 
erated, with  local  self-government  in  the  States  under  the 
protection  of  a  pozverful  Nation.  Thus,  representative 
government  has  been  enabled  to  operate  over  an  ex- 
tended and  Imperial  area,  and  "democracy  and  empire  " 
are  preserved  together. 

1  While  it  is  the  purpose  of  this  chapter  to  study  the  structure  of  our 
Government  apart  from  political  parties,  it  will  be  seen,  of  course,  that  in 
our  unwritten  political  constitution  our  political  parties  make  up  a  very- 
important  part. 


u 


CHAPTER    III 

THE   PRESIDENCY 

NDER  the  old  Confederation  the  United  States  had 
no   President.      There  was   a   presiding  officer  of 
"Congress,"  but  he  was  merely  a  moderator  of 

The  Execu-  ... 

tive  under      a  meeting,  and  was  in  no  sense  an  executive 

the  oid  con-  heaci   0f  a  government.      The   President  was 

created  by  the  Constitution  of  1787. 

When  the  Convention  met  which  formed  the  new  Con- 
stitution it  was  not  an  easy  matter  to  come  to  a  conclu- 
sion as  to  what  kind  of  an  Executive  the  new  government 
should  have.  It  was  readily  agreed  that  there  should  be 
three  departments, — Legislative,  Executive,  and  Judicial; 
but  to  cast  these  into  form  and  to  determine  their  powers, 
duties,  and  limitations  and  their  relations  to  one  another 
was  not  an  easy  task. 

The  original  "Randolph  Plan,"  supposed  to  contain 
the  backbone  and  skeleton  of  the  Constitution,  proposed 
that  a  National  Executive  be  instituted  to  be 
Virginia  chosen  by  the  National  Legislature.  It  was 
Plan-  thought  by  some,  notably  by  Roger  Sherman 

of  Connecticut,  that  the  Executive  should  be  nothing 
more  than  an  institution  for  carrying  the  will  of  the  legis- 
lature into  effect ;  that  it  should  be  appointed 
ideToT " !  by,  and  be  accountable  to,  the  legislature.  The 
Executive      legislature  was  to  be  "the  depository  of  the 

Dependence.         °  .,,'»«  ...  1        ,  i        t^ 

supreme  will  of  the  society    ;  to  make  the  Ex- 
ecutive independent  of  the  legislature  was  of  the   very 

94 


The  Presidency  95 

essence  of  tyranny.  The  legislature  was  the  best  judge 
of  the  business  which  ought  to  be  committed  to  the 
Executive  department,  and,  consequently,  of  the  number 
necessary  to  do  this  business.  Therefore  Sherman  would 
not  have  the  number  of  the  Executive  department  fixed, 
but  he  would  leave  the  legislature  free  to  appoint  one  or 
more  as  experience  might  dictate;  he  would  have  the 
Executive  entirely  dependent  upon  the  legislature.  By 
this  theory  the  legislature  is  the  representative  head  of 
the  body  politic ;  it  thinks  and  wills  and  decides.  The 
Executive  is  but  the  hands  and  arms  and  feet  to  execute 
the  will  and  decision  arrived  at. 

These  views  as  to  the  relation  between  the  executive 
and  the  legislative  branches  of  government  serve  to  sug- 
gest the  difference  between  the  Parliamentary     ParU2 


iamen- 


and  the  Presidential  system  of  government, —         tarv  and 

t-»  i      i         a  •  Presidential 

between  the  English  system  and  the  American.  Government 
When  governments  are  classified  according  to  compared. 
the  relation  of  the  legislature  to  the  Executive,  they  are 
either  Parliamentary  or  Presidential.  A  Presidential  Gov- 
ernment, like  ours,  is  the  form  in  which  the  Executive  is 
independent  of  the  legislature.  Our  President  is  inde- 
pendent of  Congress  both  in  tenure  and  prerogative. 
Congress  does  not  elect  the  President  (except  in  an 
emergency),  nor  can  it  shorten  his  term,  nor  take  away 
his  constitutional  powers,  nor  in  any  way  remove  him,  ex- 
cept by  impeachment  for  high  crimes  and  misdemeanors. 
He  was  not  made  entirely  independent  of  the  legislature, 
but  as  nearly  so  as  could  be, — as  nearly  as  would  be  safe 
for  freedom  and  good  government. 

Parliamentary  Government  is  the  form  in  which  the  Ex- 
ecutive, is  elected  by  and  is  dependent  upon  the  legisla- 
ture, in  which  the  legislature  has  "complete  control  of 
the  administration  of  law."  '  Under  this  form  the  legis- 
lature is  the  supreme  determining  will  in  the  State,  and 
1  Burgess,  p.  13. 


96  The  American  Republic 

the  Executive  is  the  agency  to  carry  out  that  will.  The 
legislature  decides,  the  Executive  acts.  Under  this  form 
of  government  the  legislature  creates  the  Executive  and 
terminates  it  at  pleasure,  and  the  Executive  can  under- 
take no  course  and  exercise  no  prerogative  not  approved 
by  the  legislature.  Of  course  such  control  of  the  Ex- 
ecutive by  the  legislature  implies  either  that  the  legis- 
lature consists  of  only  one  house,  or  that  the  houses  are 
not  co-ordinate, — that  one  is  dominant  in  power  and  con- 
trol over  the  other.  For  instance,  in  England  under 
Parliamentary  government,  the  Commons  is  the  chief 
power  in  the  state,  the  dominant  branch  of  the  legis- 
lature, and  as  such  it  is  the  source  of  the  Executive.  The 
Ministry,   or  Cabinet,   which  is  the   executive 

Theory  of  J  11  11     j  ««    u 

cabinet  branch  of  the  Government — usually  called     the 

Government.  Government," — is  created  by  the  party  ma- 
jority in  the  Commons;  this  Executive  is  responsible  for 
its  acts  and  policies  to  the  Commons.  If  at  any  time  a 
vote  is  passed  in  the  Commons  adverse  to  the  Govern- 
ment or  the  Cabinet,  the  Ministry  must  either  resign  or 
dissolve  Parliament  and  appeal  to  the  country.  If,  in  the 
election  which  follows,  the  people  send  up  a  Commons  still 
adverse  to  the  Ministry,  the  Ministry  must  resign  and  the 
Queen  must  call  the  leader  of  the  opposition  party  to 
form  a  new  Cabinet.  Refusal  on  the  part  of  the  Ministry 
to  resign  and  to  permit  the  formation  of  a  new  Cabinet 
in  harmony  with  the  majority  in  the  Commons,  or  refusal 
of  the  Queen  so  to  reorganize  the  Ministry  according  to 
the  mandate  of  the  election  would  be  equivalent  to 
usurpation  and  revolution  and  might  cause  violent  up- 
heaval and  resistance.  The  Commons,  or  the  dominant 
branch  of  the  legislature  must  control  the  Executive 
policy  and  acts  of  the  Government.  This  is  called  Par- 
liamentary government.  It  is  also  called  Cabinet  or 
Ministerial  government,  in  contradistinction  to  Presiden- 
tial government. 


The  Presidency  97 

Such  is  the  theory  of  Cabinet  government.  But  the 
practice  of  the  system  does  not  always  correspond  to  the 
theory.      It  is  to  be  remembered  that  Parlia-  cabinet 

mentary  government  is  a  growth.  It  was  never  Government 
designed,  or  created,  or  established  at  any  one 
time.  It  is  a  product  of  evolution.  It  grew  from  age 
to  age.  It  changed  from  one  generation  to  another,  and 
has  never  been  quite  the  same  in  its  practical  operation 
in  any  two  periods  of  its  history.  In  earlier  times  it 
was  a  privy  council  to  the  king,  subject  chiefly  to  his 
will, — a  kind  of  royal  cabal.  Later,  under  the  Hanoverian 
kings,  it  became  an  agency  of  the  Whig  oligarchy — the 
rule  of  a  few  powerful  families  in  the  realm  who  con- 
trolled enough  boroughs  to  enable  them  to  control  the 
Commons.  George  III.  attempted  to  make  it  George  m  ,s 
an  instrument  through  which  the  king  should  Personal 
again  actually  govern.  George  III.  did  not 
attempt  to  defy  the  Commons  or  to  govern  without  it,  as 
Charles  I.  had  done;  but  by  the  corruption  of  boroughs, 
by  means  of  his  pensioners  and  placemen,  he  sought  to 
control  the  Commons.  The  "king's  friends  "  were  so 
numerous  in  Parliament  that  no  party  Minister  could 
hold  his  place,  or  maintain  a  government,  contrary  to 
the  king's  will.  But  in  spite  of  this  last  effort  of  a  king 
to  govern  as  well  as  to  reign,  Parliamentary  government 
was  maintained  against  the  royal  prerogative,  and  the 
Cabinet  became,  as  it  is  now  in  theory,  the  executive 
agent  of  the  Commons.  The  Cabinet  originates  and 
proposes  measures ;  the  Commons  is  supposed  to  de- 
liberate on  these,  to  discuss  them,  and  to  decide  on  the 
proposals,  accepting  or  rejecting  as  the  sense  of  the  Com- 
mons is  pleased.  But  in  practice  to-day  the  Cabinet 
system  presents  another  aspect.  It  is  not  the  Commons 
which  actually  determines  on  measures,  so  much  as  the 
Cabinet  itself.  It  is  rare  that  a  "Government"  bill  is 
discussed.     The  department  that  has  it  in  charge  gener- 


98  The  American  Republic 

ally  forces  the  measure  through  by  applying  the  party 
majority  to  its  support.  Criticism  is  silenced  by  the 
knowledge  that  the  measure  is  the  proposal  of 
emmenr"  the  Ministry  whom  the  majority  were  sent  there 
controls  the    f0  support.      A  private  member  cannot  obtain 

Commons.  .         r  11*  •  r       1    *n  1 

an  opportunity  for  the  discussion  of  a  bill  unless 
the  Government  wishes  to  have  it  so.  Financial  de- 
bates on  the  budget  are  becoming  more  and  more  formal 
every  year,  the  Treasury  department  fixing  the  sum  to 
be  spent,  and  spending  it,  while  the  House  concurs  in 
practical  silence.  "In  all  departments  of  political  life  the 
Cabinet  governs,  and  not  the  House  of  Commons,  which, 
instead  of  governing,  confines  itself  to  appointing,  dis- 
missing, and,  on  occasion,  silently  influencing  the  Cabi- 
net." '  This  has  been  called  a  gradual  and  "unconscious 
revolution."  The  talking  Parliament  had  talked  too 
much,  until  legislative  business  had  become  congested, 
and  deliberation  and  debate  came  to  be  regarded  as  an 
intolerable  interruption  to  the  serious  business  of  the 
state,  until  now  we  have  "Parliament  practically  con- 
trolled, guided  and,  in  a  sense,  superseded  by  what  was 
once  its  executive  committee."  a 

While  practice  has  made  this  accretion  of  power  to  the 
Cabinet  a  natural  process,  it  is  still  true  that  the  Cabinet 
is  responsible,  and  it  may  be  dismissed  at  any  time  if  it 
goes  contrary  to  the  prevailing  opinion  of  the  nation  as 
represented  in  the  Commons.  The  Cabinet  is  still  merely 
the  agency  through  which  the  democratic  power  of  the 
nation  is  exercised. 

Now  if  the  views  expressed  by  Roger  Sherman  in  the 
Constitutional  Convention  had  prevailed,  we  should  have 
had  the  English  system  of  the  responsible  Ministry. 
Sherman  was  thinking  of  the  Executive  not  as  one  per- 
son, but  as  several, — as  an  executive  committee  to  carry 

1  See  an  article  on  "Cabinet  Government,"  London  Spectator,  April  2, 
1808.  2  Spectator,  April  2,  1898. 


The  Presidency  99 

out  the  governmental  business  determined  upon, —  a 
committee  appointed  by  Congress  and  dischargeable  by 
Congress.  This  would  have  made  Congress  the  Sherman's 
responsible  supreme  power  in  the  nation.  It  t^re°£°^°[ 
would  have  closely  united  the  executive  and  system  for 
the  legislative  power  and  responsibility  in  one  America, 
body.  It  would  have  concentrated  the  powers  of  govern- 
ment instead  of  separating  them,  and  under  such  provision, 
no  doubt,  something  like  the  English  Cabinet  system 
would  have  grown  up  in  America.  It  would  have  tended 
toward  a  more  direct  democracy  in  the  Government, — pro- 
ducing a  government  more  quickly  responding  to  popular 
behests.  Instead  of  this,  the  framers  of  our  Constitution 
established  the  separation  of  the  departments  Separation 
of  government.  Each  department,  the  Execu-  oftheDe- 
tive  and  the  Legislative,  has  its  source  in  the  par 
people;  each  is  elected  by  the  people  without  the  inter- 
vention of  the  other;  each  has  its  rights,  duties,  privi- 
leges, and  prerogatives,  assigned  by  the  Constitution, 
and  for  the  performance  of  these  the  two  departments 
are  answerable,  not  to  each  other,  but  to  the  people 
directly,  and  each  is  supreme  under  the  Constitution 
and  the  sovereign  power  of  the  people  in  its  own  defined 
sphere. 

The  Executive  is  also  independent  of  the  Judiciary. 
The  Supreme  Court  cannot  control  the  President  in  his 
executive  policies  and  conduct.  The  extent  The  Presi- 
to  which  the  President  is  bound  by  the  de-  dent  is 

cisions   of   the   Supreme    Court  has  been   re-  ofthe 

peatedly  discussed,  but  the  conclusion  is  that  judiciary, 
he  is  as  independent  from  control  by  the  courts  as  from 
the  legislature.  This  will  be  seen  from  a  number  of  pre- 
cedents and  authorities.  In  the  celebrated  case  Marburyvs. 
of  Marbury  vs.  Madison  (1803),  President  Jef-  Madison, 
ferson  refused  to  be  controlled  in  his  legal  duty  as  defined 
by  the  Supreme  Court.     Marbury  was  one  of  the  "mid- 


ioo  The  American  Republic 

night  judges"  appointed  by  the  Federalist  President,  John 
Adams,  on  the  last  night  of  his  presidential  term.  Madi- 
son was  Jefferson's  Secretary  of  State.  When  Jefferson 
came  into  office  March  4,  1801,  on  the  desk  in  the  office  of 
his  Secretary  of  State  was  found  Marbury's  commission, 
appointing  him  Justice  of  the  Peace  in  the  District  of 
Columbia.  The  President  had  appointed  him ;  the 
Senate  had  confirmed  him,  and  the  commission  had  been 
in  due  form  signed  and  sealed.  Jefferson  directed  Madi- 
son not  to  deliver  the  commission.  Marbury,  in  order 
to  secure  the  commission  and  properly  qualify  for  office, 
applied  to  the  Supreme  Court  for  a  writ  of  mandamus  to 
compel  Madison  to  deliver  the  commission.  The  Court 
decided,  through  Chief  Justice  Marshall,  that  Marbury 
was  entitled  to  his  commission  and  that  it  was  clearly 
Madison's  duty  to  deliver  it,  and  that  while  a  lower  court, 
if  applied  to,  might  issue  a  mandamus  to  compel  its  de- 
livery as  a  purely  ministerial  act,  the  Supreme  Court  had 
no  authority  to  do  so.  The  President  disregarded  the 
decision  and  his  legal  duty  as  defined  by  it,  and  he  claimed 
that  the  Judiciary  had  no  power  to  control  the  Execu- 
tive. Jefferson  asserted  that  nothing  in  the  Constitution 
had  given  to  the  Judiciary  a  right  to  decide  for  the  Ex- 
ecutive more  than  to  the  Executive  to  decide  for  the 
Judiciary. 

"  Both  magistracies  are  equally  independent  in  the  spheres 
of  action  assigned  to  them.  The  Constitution  meant  that  its 
.  _  co-ordinate  branches  should  be    checks   on  each 

Jefferson  on 

Executive  other.  But  the  opinion  which  gives  to  the  judges 
indepen-         ^e  rjgnt  to  decide  what  laws  are  constitutional  and 

dence  of  °  . 

judicial  what  are  not,  not  only  for  themselves  in  their  own 

Control.  sphere  of  action   but   for   the  Executive  and  the 

Legislative  also  in  their  spheres,  would  make  the  Judiciary 
a  despotic  branch."  ' 

1  Letter  to  Mrs.  Adams,  Sept.  11,  1804.  Jefferson  was  here  upholding  a 
pardon  which  he  had  granted  to  a  man  convicted  under  the  Sedition  Law, 


The  Presidency  101 

It  is  well  known  that  Jefferson  would  not  consent  that 
the  Judiciary  should  be  the  ultimate  arbiter  of  all  con- 
stitutional questions;  while  to  allow  the  judges  to  deter- 
mine the  scope  of  authority  for  the  other  departments 
would  be,  as  Jefferson  thought,  a  very  dangerous  doc- 
trine, and  would  lay  all  things  at  the  feet  of  the  Judiciary. 

That  each  department  was  to  be  co-ordinate  and  co- 
sovereign  in  the  interpretation  of  the  Constitution  for 
itself  in  its  own  action,  was  also  shown  in  the 

i  r    t       1  Jackson 

Conduct   Of  JaCKSOn.  Vindicates 

In    1832,    when    the    bill    rechartering    the  Executive  m- 

-,  Jl     .        ,    _  dependence. 

Second  United  States  Bank  was  passed,  Presi- 
dent Jackson  vetoed  the  bill,  giving,  as  one  of  his  main 
objections,  that  it  was  unconstitutional.  The  bank  had 
been  in  existence  for  many  years,  and  this  bill  for  a  new 
charter  did  not  alter  the  constitution  of  the  bank  in  any 
material  respect.  The  constitutionality  of  the  law  under 
which  the  bank  was  existing  had  been  tested  in  the  United 
States  Supreme  Court.  In  1819,  in  the  celebrated  case 
of  McCulloch  vs.  Maryland,  the  Court  unanimously  de- 
cided that  the  law  was  constitutional.  In  1824,  in  an- 
other case,  this  decision  was  reaffirmed  by  the  same 
Court.  President  Jackson,  however,  did  not  feel  bound 
by  these  decisions,  and  he  insisted  that  the  Executive, 
like  each  of  the  other  departments,  was  to  be  its  own 
judge  on  constitutional  questions  that  came  within  its 
particular  sphere  of  action.  In  his  Bank  veto  message 
he  said : 

"  It  is  maintained  by  the  advocates  of  the  Bank  that  its  con- 
stitutionality in  all  its  features  ought  to  be  considered  as  settled 
by  precedent  and  by  the  decision  of  the  Supreme  Court.  To 
this  conclusion  I  cannot  assent.     Mere  precedent  is  a  danger- 

on  the  ground  that  the  law  was  unconstitutional.  See  also  Jefferson  to 
Jarvis,  Works,  vol.  vii.,  p.  177  ;  Jefferson  to  Thomas  Ritchie,  Dec.  25, 
1820. 


102  The  American  Republic 

ous  source  of  authority  and  should  not  be  regarded  as  deciding 
questions  of  constitutional  power,  except  where  the  acquiescence 
of  the  people  and  the  States  can  be  considered  as  well  settled.  .  .  . 
If  the  opinion  of  the  Supreme  Court  covered  the  whole  ground 
of  this  act,  it  ought  not  to  control  the  co-ordinate  authorities 
of  this  government.  The  Congress,  the  Executive,  and  the 
Court  must  each  for  itself  be  guided  by  its  own  opinion  of  the 
Constitution.  Each  public  officer  who  takes  an  oath  to  support 
the  Constitution  swears  that  he  will  support  it  as  he  understands 
it,  and  not  as  it  is  understood  by  others." 

In   1 841,    President  Tyler's  veto  of  a  new  Bank  Bill 
again  brought  up  this  question.      Mr.   Buchanan,   after- 
wards President,  then  a  member  of  the  House, 

Executive 

independence  in  defending  his  vote  against  the  bill  and  in 
b  Sthetamed  favor  °f  Tyler's  veto,  endorsed  Jackson's  po- 
opinionof  sition.  He  held  the  legislator  to  be  as  inde- 
pendent of  the  Court  as  the  President.  Though 
all  the  judges  in  the  country  had  decided  in  favor  of  the 
Bank,  when  the  question  was  brought  home  to  him  as  a 
legislator  bound  to  vote  for  or  against  a  new  charter,  on 
his  oath  to  support  the  Constitution,  Buchanan  held  that 
he  would  have  to  exercise  his  own  judgment ;  if  the  argu- 
ments and  opinions  of  the  judges  failed  to  convince  him 
that  the  law  was  constitutional,  he  held  that  he  would  be 
guilty  of  perjury  if  he  voted  in  its  favor. 

In  June,  1854,  Charles  Sumner  was  bitterly  assailed  in 
the  United  States  Senate  by  pro-slavery  Senators  for 
And  of  having  indicated  that  he  would  not  help  to  en- 

sumner  force  the  Fugitive  Slave  Law  of  1850,  which  he 

deemed  unconstitutional.  The  constitutionality  of  the 
law,  or  a  similar  one,  had  been  upheld  by  the  Court. 
Sumner  was  charged  with  violating  his  oath  to  support 
the  Constitution  of  the  United  States.  In  his  speech  in 
reply  to  his  assailants,  after  quoting  Jackson  and  Buchanan 
as  good  Democratic  authority,  Sumner  said : 


The  Presidency 


10 


"  I  have  sworn  to  support  the  Constitution  as  I  understand 
it,  and  not  as  it  is  understood  by  others.  Does  any  Senator 
here  dissent  from  this  rule?  At  all  events,  I  accept  the  rule 
as  just  and  reasonable, — in  harmony,  too,  with  that  liberty 
which  scorns  passive  obedience,  and  asserts  the  inestimable  right 
of  private  judgment  whether  in  religion  or  politics.  In  swear- 
ing to  support  the  Constitution  at  your  desk,  Mr.  President,  I 
did  not  swear  to  support  it  as  you  understand  it.  I  swore  to 
support  the  Constitution  as  I  understand  it,  not  more,  not 
less." 

Lincoln's  words  are  to  the  same  effect.  In  his  debates 
with  Douglas  in  1858,  he  quoted  Jackson  with  approval, 
and  he  gave  notice  that  he  regarded  the  Dred  And  of 

Scott  decision  as  erroneous;  and  while  no  re-  Lincoln, 
sistance  should  be  offered  to  it  as  the  law  in  the  particu- 
lar case  decided,  yet  Lincoln  denied  that  the  country- 
should  feel  bound  by  it  as  a  precedent;  both  he  and 
Seward  charged  the  President  and  the  Chief  Justice  with 
collusion,  and  there  is  no  doubt  that,  as  President,  Lin- 
coln would  have  refused  to  be  bound  by  the  Supreme 
Court's  decision;  that  he  would  have  continued  to  assert 
the  power  of  Congress,  and  he  would  have  used  all  the 
powers  of  the  Presidency,  to  prohibit  slavery  in  the  Terri- 
tories, in  opposition  to  the  Court. 

Webster  held  a  somewhat  different  view.  While 
speaking  in  party  opposition  to  Jackson's  veto  of  the 
Bank  Bill,  Webster  asserted  that  a  decision  of  Webster.s 
the  Supreme  Court  of  the  United  States  was  view  of 

binding  on  all  other  departments  of  the  Gov-  DepxeencdUence 
ernment.  When  the  question  is  whether  the  on  judicial 
law  is  to  be  passed,  the  legislator  and  the 
President  must  determine  for  themselves  whether  Con- 
gress has  constitutional  power.  But  when  the  question 
is  whether  a  statute  which  is  in  force  shall  be  continued 
or  amended,  a  previous  decision  of  the  Supreme  Court 
that  the  original  statute  was  constitutional  has  a  greater 


104  The  American  Republic 

force  than  the  mere  weight  of  the  reasoning  by  which  the 
Court  upheld  it.  Mr.  Webster  pointed  out  that  the  same 
principle  of  action  on  which  the  President,  in  his  legis- 
lative capacity,  refused  to  approve  a  law  continuing  an 
existing  law  in  force  would  enable  him,  in  his  executive 
capacity,  to  refuse  to  execute  a  law  which  he  deemed  un- 
constitutional.1    Webster  said : 

"  The  President  is  as  much  bound  by  the  law  as  any  private 
citizen,  and  can  no  more  contest  its  validity  than  any  private 
citizen.  .  .  .  The  President  may  say  a  law  is  unconstitu- 
tional, but  he  is  not  the  judge.  Who  is  to  decide  that  ques- 
tion? The  Judiciary  alone  possesses  this  unquestionable  and 
hitherto  unquestioned  right.  The  Judiciary  is  the  constitu- 
tional tribunal  of  appeal  for  the  citizen  against  both  Congress 
and  the  President,  in  regard  to  the  constitutionality  of  laws. 
.  If  we  depart  from  the  observance  of  these  salutary 
principles  the  executive  power  becomes  at  once  purely 
despotic." 

No  doubt  Jefferson  and  Jackson,  Sumner  and  Lincoln, 
were  right  in  their  view  that  a  President  must  judge  for 
himself  as  to  his  constitutional  duty,  and  that  he  has  a 
perfect  right  to  refuse  his  sanction  to  a  bill  on  constitu- 
tional grounds,  though  such  a  bill  has  previously  been 
held  to  be  constitutional  by  the  Supreme  Court.  On 
this  point  Judge  Cooley  says: 

"  It  has  been  claimed,  however,  that  when  the  point  of  con- 
stitutional law  which  the  case  presents  is  one  which  has  pre- 
viously received  judicial  examination  and  decision, 
Relation"    "  trie  President  may  not  rightfully  disregard  this  de- 
ofthe  cision  and  base  his  negative  on  his  own  opinion 

epar  men  s.  0pp0se(j  t0  ^at  Qf  foe  Judiciary. 

"That  the  President  has  a  discretionary  power  to  veto  a 
bill  for  any  reason  that  appears  to  him  sufficient  is  undoubted. 

'See  Curtis,  G.  T.,  Constitutional  History  of  the  United  States,  vol.  ii., 
p.  70  ;  G.  T.  Curtis's  Life  of  Webster,  vol.  i.,  p.  417  ;  Hamilton,  in  No. 
78  of  the  Federalist. 


The  Presidency  105 

The  Constitution  gives  the  power  and  makes  no  exceptions. 
That  it  is  proper  that  he  pay  great  deference  to  the  judicial 
authority  on  such  questions  as  have  already  been  authorita- 
tively determined  may  also  be  conceded.  But  that  he  is  guilty 
of  any  violation  of  duty,  or  is  disrespectful  of  the  Judiciary,  or 
disregards  any  just  principles  of  government  when  he  acts  upon 
his  own  judgment  of  constitutional  right,  power,  or  obligation 
involved  in  any  proposed  law  is  not  admitted.  When  he  does 
not  approve  a  bill,  he  is  to  withhold  his  approval,  and  when  he 
may  do  so  on  the  ground  of  mere  expediency,  it  would  be  re- 
markable if  he  were  not  at  liberty  to  do  so  when  his  objection 1 
goes  to  the  very  right  of  the  legislature  to  pass  the  bill  at  all." 

But  Webster  was  also  right  in  asserting  that  a  President 
should  not  refuse  to  execute  a  law  merely  because  in  his 
opinion  it  is  unconstitutional.     The  importance 
of  this  view  of  Webster's  was  emphasized  by       president 
Tackson's  high-handed  conduct  in  his  refusal  to    is  B°und  by 

J  °  the  Law. 

execute  the  law  as  declared  by  the  Supreme 
Court  for  the  protection  of  the  Cherokee  Indians  against 
the  State  of  Georgia.  It  was  in  the  case  of  Worcester 
vs.  Georgia  (1832),  in  which  the  Court  declared  it  to  be  the 
President's  duty  to  protect  the  Cherokees,  that  Jackson  is 
said  to  have  made  use  of  the  notable  expression,  "John 
Marshall  has  made  his  decision:  now  let  him  enforce  it." 
This  was  an  illegal  attitude  on  the  part  of  the  President. 
But  there  was  no  remedy  in  the  Judiciary.  If  the  Presi- 
dent violates  his  oath  to  execute  the  law  it  is  the  duty  of 
the  House  to  impeach  him  and  of  the  Senate  to  convict 
and  remove  him.  If  the  houses  fail  to  impeach,  the  only 
remedy  lies  in  the  power  of  the  people  to  relieve  such  a 
President  from  office  at  the  next  election.  If  the  people 
endorse  the  President's  course  by  re-election,  as  in  the 
case  of  Jackson,  the  sovereign  voice  has  spoken,  and  that 
is  final. 

The  President  is  bound  to  execute  an  act  that  has  been 

1  Constitutional  Law,  p.  162. 


106  The  American  Republic 

passed  over  his  veto,  no  matter  if  such  an  act  seems  to 
him  clearly  unconstitutional.  He  may  not  violate  or  dis- 
regard this  act  as  a  means  of  testing  its  validity  before  the 
Court.  This  would  be  to  give  him  the  suspending  power. 
It  would  be  a  double  veto :  one  veto  to  be  overcome  only 
by  a  two-thirds  majority  in  both  Houses,  the  other  to 
be  overcome  only  by  a  judicial  decision.  The  constitu- 
tionality of  an  act  of  Congress  can  be  brought  before  the 
courts  only  by  persons  not  charged  with  the  execution  of 
the  laws,  whose  interests  are  affected  by  the  act  in  ques- 
tion. This  principle  was  argued  at  length  in  the  im- 
peachment trial  of  President  Johnson.1  The  President's 
constitutional  prerogatives  may  be  infringed  upon  by  an 
Act  of  Congress,  as  was  done  in  the  Tenure  of  Office  Act  in 
1867 ;  but  the  only  defence  of  the  President  is  in  his  veto. 
Nor  can  the  President  be  restrained  by  injunction  from 
carrying  into  effect  an  Act  of  Congress  alleged  to  be  un- 
constitutional.    This  was  made  clear  in  Recon- 

Tne 

President  struction  times.  On  March  2  and  23,  1867, 
Retrained  by  Congress  passed  two  measures  commonly  called 
injunction,  the  Reconstruction  Acts.  These  Acts  recited 
that  no  legal  State  governments  for  the  protection  of  life 
and  property  existed  in  certain  Southern  States,  and  that 
it  was  necessary  that  peace  and  order  be  maintained  there 
until  loyal  Republican  States  should  be  established ;  and 
it  was  made  the  duty  of  the  President  to  use  military 
authority  in  protecting  property,  punishing  violence,  and 
maintaining  order.  These  Acts  President  Johnson  vetoed 
as  unconstitutional,  and  they  were  passed  over  his  veto. 

A  motion  was  made  before  the  Supreme  Court  "for 

leave  to  file  a  bill  in  the  name  of  the  State  of  Missis- 

....     sippi  praying  the  Court  perpetually  to  enjoin 

Mississippi  rr      '        ;        °  xl  .  r     r. 

vs.  Johnson,  and  restrain  Andrew  Johnson,  President  of  the 
1866.  United  States,  and  his  officers  and  agents,  and 

especially  A.   O.  C.  Ord  (General),   assigned  as  military 

1  See  Burgess's  Reconstruction,  pp.  182-183,  et  seq. 


The  Presidency  107 

commander  of  the  district  of  Mississippi,  from  executing 
or  in  any  manner  carrying  out  the  two  Acts  of  Congress 
named  in  the  bill,"  on  the  ground  that  the  Acts  were 
unconstitutional. 

The  Attorney  General  objected  to  the  leave  to  file  the 
bill,  upon  the  ground  that  "no  bill  which  makes  a  Presi- 
dent a  defendant  and  seeks  an  injunction  against  him  to 
restrain  him  in  the  performance  of  his  duties  as  President 
should  be  allowed  to  be  filed  in  the  Court. ' '  The  Supreme 
Court  sustained  the  objection  and  refused  to  consider  its 
right  to  restrain  the  President,  "without  expressing  any 
opinion  on  the  broader  issues,  whether  in  any  case  the 
President  of  the  United  States  may  be  required  by  the 
process  of  this  Court  to  perform  a  purely  ministerial  act 
under  a  positive  law,  or  may  be  held  amenable,  in  any 
case,  otherwise  than  by  impeachment  for  crime."  * 

It  was  assumed  by  the  attorneys  for  Mississippi  that 
President  Johnson,  in  the  execution  of  the  Reconstruc- 
tion Acts,  was  required  to  perform  a  mere  Distinction 
ministerial  duty.      This  confounds  the  terms        between 

J  1  •    1  i  Ministerial 

ministerial  and  executive,  which  are  by  no  andExecu- 
means  equivalent.  tlve  Duty* 

A  ministerial  duty,  the  performance  of  which  may,  in 
proper  cases,  be  required  of  the  head  of  a  department  by 
judicial  process,  is  one  in  respect  to  which  nothing  is  left 
to  discretion.  It  is  a  simple  definite  duty,  arising  under 
conditions  admitted  or  proved  to  exist,  and  imposed  by 
law.  It  is  the  act  of  an  agent  who  must  act  as  directed, 
without  discretion.2  In  his  executive  duty  the  President 
acts  as  a  principal.  In  this  capacity  he  stands  t  instead 
of  the  people,  subject  only  to  the  control  of  other  prin- 

1  Mississippi  vs.  Johnson,  1866. 

'•'Marbury  vs.  Madison  affords  an  illustration.  The  delivery  of  the  com- 
mission to  Marbury  was  a  purely  ministerial,  act  and  a  lower  court  might 
have  issued  a  mandamus  to  compel  this  act.  See  p.  ioo.  See  also  Kendall, 
Postmaster-General,  vs.  Stockton  and  Stokes  ;  Boyd's  Cases  in  Constitu- 
tional Law. 


108  The  American  Republic 

cipals  whom  the  people  have  appointed  in  their  stead. 
He  has  power  to  control  the  executive  policy  within  con- 
siderable discretion.  The  people  may  hamper  and  weaken 
their  President  and  reduce  his  discretion  by  a  hostile  two- 
thirds  majority  in  Congress, — by  laws  limiting  his  powers 
or  interfering  with  his  prerogatives,  passed  by  this  ma- 
jority that  stand  ready  to  impeach  the  President  if  he 
disregards  their  restrictions.  Thus  Congress  may  put 
the  President  in  a  sort  of  strait-jacket  and  bind  him  down 
by  restrictions.  But  the  people,  when  they  assume  to 
exercise  such  power  through  Congress,  should  remember 
that  they,  too,  must  act  according  to  law,  and  they  have 
a  right  to  limit  the  President's  powers  only  within  legal 
limits.  If  they  wish  to  take  away  the  President's  rights, 
powers,  and  prerogatives  through  Congress  they  must  do 
so  by  a  constitutional  process,  and  not  by  the  mere  ap- 
plication of  a  brutal  majority. 

We  may  profitably  sum  up  this  subject  of  executive 
independence  in  the  words  of  one  of  the  best-known 
American  authorities  in  constitutional  law : 

"  Within  the  sphere  of  his  authority  the  Executive  is  inde- 
pendent, and  judicial  process  cannot  reach  him.  But  when 
0  he  exceeds  his  authority,  or  usurps  that  which  be- 

Summary  ■>  '  r 

view  of  longs  to  one  of  the  other  departments,  his  orders, 

Executive      commands,    or  warrants  protect  no  one    and    his 

Indepen-  1 

dence.  agents  become  personally  responsible  for  their  acts. 

Cooiey.  The  check  of  the  courts  consist  in  refusing  the 

sanction  of  the  law  to  whatever,  act  is  in  excess  of  it,  and  of 
holding  the  executive  agents  and  instruments  to  strict  ac- 
countability." ' 

It  is  in  this  way  the  Americans  have  separated  the 
governmental  powers.     Some  writers  have  preferred  the 

'Cooiey,  Constitutional  Law,  p.  157.  See  also  Kent's  Commentaries, 
vol.  i.,  pp.  500-507  ;  Webster  on  the  Independence  of  the  Judiciary,  Works, 
vol.  iii.,  p.  29. 


The  Presidency  109 

English  system,  by  which  these  powers  are  concentrated 
in  one  body.      In  England  all  departments  of  the  govern- 
ment are  controlled  by  a  sovereign   ministry. 
It   is  said  that  by  confiding  legislative  power      "American 
and  the  election  and  control  of  the  Executive         systems 

,  .  .  ,  ...  lit-  Compared. 

to  the  same  hands,  the  nation  is  enabled  in  any 
time  of  emergency  to  act  with  its  whole  force.  The 
English  Premier,  while  supported  by  his  party  majority 
in  the  Commons,  is  absolute ;  he  may  appoint  whom 
he  pleases,  dismiss  whom  he  distrusts,  and  spend  what- 
ever is  necessary.  The  English,  under  their  system,  in  a 
time  of  great  public  emergency,  may  dismiss  an  inefficient 
Executive  and  call  their  strongest,  most  capable  man  into 
power.     The  American  people  cannot  do  this. 

"  The  framers  of  the  Constitution  were  possessed  with  two 
fears:  that  the  Executive  might  be  become  too  strong,  and 
they  therefore  deprived  it  of  any  place  in  Congress ; 
and  that  it  might  become  too  weak,  and  they  there-  Danger 

fore  made  its  chief  irremovable  except  by  impeach-  in  the 

,  .  .  .  -lii.     Independence 

ment,  vesting  him  at  the  same  time  with  absolute  of  the 

power  to  appoint  and  to  dismiss  his  advisers,  and  American 
with  the  initiative  in  the  nomination  and  removal  xecu  lve* 
of  all  officers,  an  initiative  which  during  the  recess  of  Congress 
becomes  a  right  of  appointment.  The  result  of  this  arrange- 
ment is  that  in  an  emergency,  like  a  great  war,  an  inefficient 
President  means  incurable  inefficiency  in  all  departments. 
There  is  no  power  of  removing  him,  there  is  no  power  of  com- 
pelling him  to  trust  the  right  men,  there  is  no  power  of  coercing 
him  into  a  greater  display  of  energy.  He  moves  on  in  his  own 
path  more  uncontrolled  than  an  Emperor  of  Russia,  for  the 
army  has  in  Russia  an  influence  in  emergencies  which  is  never 
disregarded.  Suppose  that  in  a  dangerous  war  crisis,  the 
President,  being,  as  he  is,  the  sole  source  of  executive  energy 
in  the  Republic,  is  unequal  to  his  position,  does  not  feel  clear 
what  he  ought  to  do,  does  not  pick  precisely  the  right  men — 
in  short,  suppose,  through  sheer  stubbornness  or  incompetency, 


t  10  The  American  Republic 

he  fails  to  rise  to  the  occasion  and  do  what  is  necessary, — 
where  is  the  remedy?  There  is  simply  none.  The  United 
States  might  possess  the  greatest  organizer  alive ;  the  American 
people  might  be  boiling  over  with  irritation;  the  Army  and 
Navy  might  be  almost  mutinous  in  their  despair  at  inaction ; 
and  still  there  would  be  nothing  to  be  done.  The  President 
cannot  be  removed;  he  is  no  more  bound  to  obey  opinion 
than  a  judge  is;  and  as  to  the  officers,  what  can  they  do  ex- 
cept wait  sullenly  on  till  final  orders  are  received?  "  2 

This  criticism  of  our  Presidency  in  comparison  with  the 
English  Ministry  has  force.  In  1861,  the  nation  was  im- 
patient and  angry  because  President  Buchanan  in  a  time 
of  great  emergency  seemed  nerveless  and  inactive.  Yet 
nothing  could  be  done  but  to  hope  that  the  President 
would  surround  himself  with  better  advisers  and  virtually 
give  the  reins  to  stronger  hands,  as  Mr.  Buchanan  finally 
did,  or  to  wait  till  his  term  had  expired.  But  perhaps 
this  criticism  disregards  too  much  the  influence  of  public 
opinion.  This  is  powerful,  if  not  decisive,  and  it  gen- 
erally leads  the  President  to  act  in  harmony  with  the 
positive  and  pronounced  desire  of  the  nation.  And  as  a 
matter  of  fact,  in  great  war  emergencies,  our  Presidents 
have  done  well.  Experience  has  shown  that  they  can 
be  trusted  to  rise  above  personal  and  party  purposes  and 
act  patriotically  for  the  nation's  welfare.  But  it  must  be 
recognized  that  the  system  makes  possible  an  incompetent 
Executive  for  a  crisis,  or  a  base  betrayal  of  his  trust.  If 
the  American  people  should  be  called  to  face  a  dreadful 
occasion  with  such  an  Executive,  whom  they  could  not 
remove  for  several  years,  they  might  think  it  advisable 
"by  a  rapidly  passed  amendment  to  allow  the  House  of 
Representatives  to  put  the  continuance  in  office  of  such 

'London  Spectator,  June  25,  1898,  article  on  "The  Sovereignty  in 
America,  France,  and  England."  The  student  is  advised  to  consult  this 
article. 


The  Presidency  in 

a  President  before  the  people  to  be  decided  by  a 
'Referendum.'  "  ' 

Why  did  the  statesmen  of  1787  adopt  the  present  sys- 
tem of  the  separation  of  powers  rather  than  the  Parlia- 
mentary system  of  the  union  of  these  powers?  Wh 

Three  reasons  have  been  urged  in  explana       separation 

tion  Of  this  :  Departments 

I.  The  experience  and  observation  of   the  was 

men  of  1787  under  the  English  Constitution. 
It  was  supposed  that  that  Constitution  properly  admin- 
istered would  secure  the  separation  and  independence  of 
governmental  powers.  The  result  reached  by  our  Con- 
stitution-makers was  partly  the  result  of  their  misappre- 
hension of  what  the  English  Constitution  was  coming  to 
be.  That  Constitution  was  not  then  what  it  is  now.  It 
was  not  then  quite  what  our  fathers  thought  it  was, 
though  recently  it  had  been,  to  all  appearances,  as  they 
understood  and  interpreted  it.  It  was  in  process  of 
change.  The  ministerial  system  of  a  Cabinet  responsible 
to  the  Commons  and  not  to  the  king  was  in  the  process 
of  development.  If  such  a  Cabinet  had  previously  existed 
in  England,  it  was  not  because  it  was  seen  to  be  an  es- 
sential part  of  the  English  Constitution,  but  Influence 
from  the  circumstances  of  the  times.  The  first  American 
two  Hanoverian  kings  of  England,  George  I.  Experience 
(1714-1727)  and  George  II.  (1 727-1 760),  were  under 

not  able  to  speak  the  English  language  and  eoree 
were  more  or  less  indifferent  to  the  management  of  the 
English  Government ;  if  they  could  reign  in  honor  and  be 
undisturbed  in  their  royal  revenues,  they  were  ready  to 
leave  the  real  and  responsible  business  of  government  to 
their  Ministers.  They  were  more  interested  in  Hanover, 
and  the  questions  of  state  were  a  burden  to  them ;  they 
were  willing  to  leave  these  to  Walpole,  the  first  Prime 
Minister,  and  to  his  successors.     These  kings  had  a  right 

1  Spectator,  June  25,  1898. 


ii2  The  American  Republic 

to  attend  Cabinet  meetings,  but  if  they  attended  they 
probably  went  to  sleep  while  bills  and  budgets  were 
being  discussed.  Consequently,  royal  attendance  at  Cab- 
inet councils  declined.  It  was  easier  to  govern  through 
the  Prime  Minister,  and  the  Parliamentary  government 
of  the  times  of  Walpole  and  Pitt  sprang  up,  and  able 
Ministers  managed  the  Commons.  But  when  George 
III.  came  to  the  throne,  he  proposed  to  govern  as  well 
as  to  reign.  His  mother  told  him  to  be  king,  to  be  the 
Executive  in  fact  as  well  as  in  name.  He  attempted  to 
be  the  real  manager  and  director  of  government  in  Par- 
liament. By  his  patronage  and  bribes  and  Court  favors 
he  was  able  to  place  his  supporters  in  Parliament,  and  the 
"King's  friends"  became  the  chief  power  in  the  State. 
It  was  in  1780,  but  a  short  time  before  our  Constitution 
was  made,  that  the  Dunning  resolution  was  carried  in 
Parliament  that  "the  power  of  the  Crown  has  increased, 
is  increasing,  and  ought  to  be  diminished."  George  III.'s 
temporary  personal  power,  from  1760  to  1783,  led  our 
fathers  to  overestimate  the  monarchical  element  in  the 
English  Constitution.  To  them  the  king  appeared  to  be 
the  real  Executive,  and  they  believed  that  his  attempts  to 
control  the  legislature  were  dangerous  to  liberty.  The 
legislature  should  be  kept  free  from  the  bribes  and  threats 
and  power  of  the  king,  who  was  constantly  attempting  to 
put  his  hand  in  where  it  did  not  belong.  Consequently, 
in  creating  the  President,  who  was  to  represent  the  mon- 
archical element  in  our  Government  he  must  be  kept  from 
doing  what  George  was  doing, —  from  influencing  and 
controlling  the  legislature.  The  Constitution,  therefore, 
while  throwing  restrictions  and  limitations  around  the 
President,  should  make  the  legislature  separate  and  inde- 
pendent of  his  control. 

2.  The  political  philosophy  which  the  makers  of  our 
Constitution  accepted  taught  that  freer  and  better  gov- 
ernment would  be  promoted  by  the   separation    of  the 


The  Presidency  113 

three  departments  of  government.  This  was  the  political 
theory  of  the  time,  and  it  was  deeply  instilled  in  the 
minds  of  American  political  thinkers  and  states-  influence  of 
men.     The  treatise  on  government  which  most         Political 

.  Philosophy 

influenced  them  at  the  time  and  with  which  on  the 

they  were  familiar,  was  The  Spirit  of  Laws,  Separ0aft|n" 
written  by  Montesquieu,  a  Frenchman.  Powers  of 

Government. 

"  This  book,"  says  Mr.  Bryce,  "  had  won  its  way  to  an  im- 
mense authority  on  both  sides  of  the  ocean.  Montesquieu, 
contrasting  the  private  as  well  as  the  public  liberties  of  Eng- 
land with  the  despotism  of  continental  Europe,  had  taken  the 
Constitution  of  England  as  his  model  system,  and  had  ascribed 
its  merits  to  the  division  of  legislative,  executive,  and  judicial 
functions  which  he  discovered  in  it  and  to  the  system  of  checks 
and  balances  whereby  its  equilibrium  seemed  to  be  preserved. 
No  general  principle  of  politics  laid  such  hold  on  the  Consti- 
tution-makers and  statesmen  of  America  as  the  dogma  that  the 
separation  of  these  three  functions  is  essential  to  freedom.  It 
had  already  been  the  groundwork  of  several  State  constitutions. 
It  is  always  reappearing  in  their  writings;  it  was  never  absent 
from  their  thoughts."  ' 

Blackstone,  in  his  Commentaries,  published  in  1761,  de- 
scribing the  theory  rather  than  the  practice  of  the  Eng- 
lish Constitution,  presented  the  same  idea  that  our  fathers 
had  received  from  the  political  philosophy  of  Montes- 
quieu. "Whenever  the  power  of  making  and  that  of  en- 
forcing the  laws  are  united  together  there  can  be  no  public 
liberty."  *  "The  powers  and  functions  of  the  Cabinet, 
the  overmastering  force  of  the  House  of  Commons,  the 
intimate  connection  between  legislation  and  administra- 
tion, these  which  are  to  us  the  main  characteristics  of  the 
English  Constitution  were  still  far  from  fully  developed."  3 

1  American  Commonwealth,  vol.  i.,  pp.  29-30. 

5  Blackstone  3  Bryce,  vol.  i.,  p.  29. 

8 


ii4  The  American  Republic 

3.  The  third  influence  making  for  the  separation  of  gov- 
ernmental powers  was  the  precedent  of  the  State  consti- 
tutions and  the  experience  of  the  colonial  and 

Influence  _         ,  . 

of  the  State  governments.      In  the  Colonies,  the  Ex- 

state  con-      ecutive  was  the   governor,    usually   appointed 

stitutions.  °  '  J         rr 

by,  and  dependent  upon,  the  Crown.  The 
colonists  stood  for  charters  and  constitutions  which 
tended  to  restrain  the  royal  prerogative  and  power  exer- 
cised through  the  royal  government.  Many  of  the  men 
who  framed  our  Constitution  had  lived  under  colonial 
charters  which  had  drawn  lines  of  separation  between  the 
departments  of  government,  and  between  1776  and  1787 
they  had  helped  to  form  State  constitutions  which  defined 
these  lines  still  more  distinctly.  They  were  merely  act- 
ing in  harmony  with  the  experience  of  their  past  and  the 
teaching  of  their  times. 

It  was  early  agreed  in  the  Convention  that  the  new 
Central  Government  should  have  an  authority  to  execute 
„.    ,  the  laws.      Should  this  authority  be  single  or 

Single  or  J  *> 

piurai  plural;  should  it  consist  of  one  person  or  of 

Executive.  more  than  one?  Mr.  Wilson  favored  a  single 
Executive  as  "  giving  most  energy,  despatch,  and  re- 
sponsibility to  the  office."  Mr.  Randolph  thought  a  single 
Executive  would  be  the  beginning  of  monarchy.  The 
temper  of  the  people  was  averse  to  the  semblance  of 
monarchy.  "It  was  agreed,"  said  Randolph,  that 
"vigor,  despatch,  and  responsibility  were  the  qualities 
needed  in  the  Executive,  but  unity  was  not  necessary 
and  a  plural  Executive  was  just  as  efficient.  A  single 
magistrate  would  never  secure  the  confidence  of  the  peo- 
ple.     It  would  be  too  much  like  the  English  king." 

Mr.  Wilson  replied  that  a  single  Executive  would  not 
be  unpopular.  All  the  thirteen  States,  though  agreeing 
in  scarcely  any  other  instance,  agree  in  placing  a  single 
magistrate  at  the  head  of  the  Government.  There  can 
be  no  co-ordinate  heads  in  a  government.     The  experience 


The  Presidency  115 

of  Holland  was  held  up  as  conclusive  evidence  of  a  plural 
Executive.  Unity  would  favor  both  the  tranquillity  and 
the  vigor  of  the  Government.  It  was  feared  that  the 
resemblance  between  a  single  Executive  and  the  king 
would  cause  a  rejection  of  the  whole  plan  by  the  people. 
It  was  thought  wise  to  attempt  to  prove  in  the  Federalist 
that  no  very  close  analogy  existed.1  The  arguments 
urged  by  Wilson  and  others  carried  the  Convention,  and 
a  single  Executive  was  agreed  to. 

The  President's  term  was  fixed  at  four  years  and  he  is 
eligible  to  re-election.  Washington  accepted  a  second 
term,  but  refused  a  third.      Jefferson  also  might 

J  &  Term  of 

have  been  elected  a  third  time,  but  he  followed  office  and 
the  example  of  Washington  and  refused  a  third  Re-ehslblllty- 
term.  President  Jackson,  who  was  very  popular  with 
the  people,  commended  this  precedent,  and  no  serious 
attempt  was  ever  made  to  elect  a  President  to  a  third 
term  until,  in  1880,  some  of  the  friends  of  ex-President 
Grant  sought  to  secure  his  third  election.  The  attempt 
was  not  received  favorably,  and  was  defeated,  and  it  may 
now  be  said  to  be  a  part  of  the  unwritten  constitution 
that  no  President  is  eligible  to  a  third  term.  Many  think 
it  would  be  better  if  the  President  were  not  eligible  even 
to  a  second  term ;  that  he  would  not  then  be  tempted  to 
use  the  power  and  patronage  of  his  office  to  secure  a  re- 
election ;  that,  as  it  is,  most  of  his  thought  and  attention 
are  occupied  during  his  first  term  in  considering,  not  how 
he  may  make  a  good  President,  but  how  he  may  secure 
a  second  nomination ;  and  consequently  he  must  do,  not 
what  the  nation  needs,  but  what  the  political  managers 
require.  This  question  was  greatly  discussed  Mod 
in  the  Convention  and  was  closely  connected  Election  and 
with  the  length  of  his  term  and  the  mode  of  e"e  Igl  1  lty* 
his  election.  If  he  were  to  be  elected  by  Congress  as 
first  proposed,  it  was  thought  he  should  not  be  re-eligible, 

1  See  Federalist,  Nos.  67  and  69. 


n6  The  American  Republic 

for  in  that  case  he  would  be  constantly  intriguing  with 
Congress  for  re-election.  The  framers  of  the  Constitu- 
„     ,  tion    never    once    imagined    that    a    President 

Re-election  ° 

and  would  use  the  patronage  of  his  office,  through 

Patronage.  partv  politicians,  to  secure  his  re-election  by  the 
people  or  the  continuance  of  his  party  in  power.  Many 
favored  a  longer  term  than  four  years,  some  five,  some 
six,  some  seven,  some  ten, — the  longer  the  term  the  more 
pronounced  the  disposition  not  to  allow  a  re-election. 
Hamilton,  who  most  of  all  favored  a  strong  government, 
and  wished  to  create  the  strongest  possible  Executive, 
favored  the  appointment  of  the  President  for  good  be- 
havior or  for  life,  subject  only  to  removal  by  impeach- 
ment. This,  of  course,  would  not  be  tolerated  to-day. 
But  we  must  remember  that  Hamilton  did  not  foresee  a 
party  President  or  one  that  would  use  his  office  for  party 
ends.  He  wished  to  promote  stability  and  force  in  the 
government,  not  democracy;  and  to  Hamilton's  mind 
the  President  should  be  like  the  English  sovereign  of  to- 
day, above  parties  and  party  strife,  holding  an  even  and 
impartial  hand  between  contending  parties.  But,  as  it 
turned  out,  our  President  was  to  have  real  not  merely 
nominal  powers;  and  he  has  come  to  be  a  party  leader 
and  to  have  even  larger  powers  than  were  anticipated. 
Hamilton's  plan,  so  far  as  the  presidential  powers  extend, 
would  have  prevented  "government  by  the  people." 

The  method  of  electing  the  President  provided  by  the 
Constitution  is  as  follows : 

"  Each  State  shall  appoint,  in  such  manner  as  the  Legislature 

thereof  may  direct,  a  number  of  electors,  equal  to  the  whole 

number  of  Senators  and  Representatives  to  which 

How  the  _  _    l 

President  the  State  may  be  entitled  in  the  Congress;  but  no 
is  Elected.  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States  shall  be  ap- 
pointed an  elector."  ' 

1  Constitution,  Art.  II.,  Sec.   I,  CI.  2. 


The  Presidency  117 

"The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of  whom 
at  least  shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves." ' 

The  body  of  the  electors,  when  they  meet  in  their  re- 
spective States  to  vote  for  President  and  Vice-President 
are  called  the  Electoral  College.  Congress  may  determine 
the  time  for  choosing  the  electors  and  also  the  time  for 
their  meeting  in  the  College  to  choose  the  President. 
They  are  now  elected,  in  the  year  of  the  presidential  elec- 
tion, on  the  first  Tuesday  after  the  first  Monday  in  No- 
vember. This  day  was  appointed  by  an  Act  of  1845. 
The  day  for  choosing  the  electors  must  be  the  same 
throughout  the  United  States.  This  is  required  by  the 
Constitution.  In  all  the  States  the  electors  are  chosen  by 
popular  vote,  and  in  most  of  the  States  the  balloting  is 
by  the  Australian  system.  It  is  not  necessary  that  the 
names  of  the  presidential  candidates  should  be  upon  the 
ballot.  In  point  of  law  the  voters  vote  for  the  electors, 
not  for  the  party  candidates.  The  electors  meet  for  their 
final  voting  in  their  respective  State  capitals  on  the  second 
Monday  in  January.  Originally,  by  the  Act  of  1792,  the 
meeting  of  the  Electoral  College  was  required  to  be  on 
the  first  Wednesday  in  December,  and  the  popular  election 
was  to  be  thirty-four  days  preceding  this.  But  by  the 
Act  of  1887,  the  first  Monday  in  January  was  fixed  for 
the  meeting  of  the  College.  The  electors  meet  in  their 
respective  State  capitals  on  the  same  day.  They  organize 
by  electing  one  of  their  number  chairman  and  by  choosing 
a  secretary.  If  an  elector  should  die  between  the  popular 
election  in  November  and  the  meeting  of  the  College,  or 
be  prevented  by  sickness  or  accident  from  attending  the 
College,  the  remaining  electors  may  choose  some  one  to 
fill  the  vacancy.     The  electors  ballot,  all  voting  for  the 

1  Twelfth  Amendment. 


i iS  The  American  Republic 

candidate  for  whom  they  were  elected  to  vote.1  They 
must  name  in  their  ballots  the  person  voted  for  as  Presi- 
dent, and  in  distinct  ballots  the  person  voted  for  as  Vice- 
President. 

The  law  requires  three  certificates  of  the  result  of  the 
ballot  in  the  respective  States  to  be  kept.  One  is  filed 
with  the  Judge  of  the  United  States  District  Court  of  the 
electors'  State,  one  is  sent  by  mail,  and  one  by  mes- 
senger— usually  one  of  the  electors — to  the  President  of 
the  Senate.  "The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted."  2  The  day  appointed  for  the  counting  in 
Congress  is  the  first  Wednesday  in  February.  If  no 
candidate  for  President  receive  a  majority  of  the  electoral 
Eventual  votes,  then  from  the  three  highest  "on  the  list 
choice  of  0f  those  voted  for,  the  House  of  Representa- 
bythe  tives   shall   choose  immediately  by  ballot  the 

House.  President.     But  in  choosing  the  President  the 

votes  shall  be  taken  by  States,  the  representation  from 
each  State  having  one  vote  "  ;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two  thirds  of 
the  States,  and  a  majority  of  all  the  States  shall  be  neces- 
sary to  a  choice.  In  the  election  of  the  Vice-President, 
if  a  majority  of  the  Electoral  College  do  not 

Eventual  J  J  ° 

choice  of  unite  on  a  candidate,  "then  from  the  two  high- 
the  vice-        est  on  j. kg  ust  j-he  Senate  shall  choose  the  Vice- 

President 

by  the  President;    a    quorum    for   the    purpose    shall 

senate.  consist  of  two  thirds  of  the  whole  number  of 

Senators,  a  majority  of  the  whole  number  being  neces- 
sary to  a  choice."  If  no  President  is  elected  by  either 
the  Electoral  College  or  the  House  before  the  expiration 
of  the  current  presidential  term  on  the  4th  of  March  fol- 
lowing, and  if  a  Vice-President  should  be  elected  by  that 
time,  the  Constitution  provides  that  this  Vice-President 
1  See  p.  133  on  Act  of  1887.  2  Constitution. 


The  Presidency  119 

shall  become  President  until  an  election  of  a  President  is 
accomplished.  If  neither  President  nor  Vice-President 
be  elected  by  March  4th,  the  Constitution  does  not  indi- 
cate who  shall  act  as  President,  and  nobody  is  vested 
with  power  to  determine  the  question.  There  would  be 
an  interregnum,  unless  the  existing  President  and  Vice- 
President  should  resign  before  the  close  of  their  term,  in 
which  case,  by  the  provisions  of  the  Presidential  Succes- 
sion Bill,  the  Secretary  of  State  would  act  as  President 
until  an  election  be  made.  The  Constitution  should  pro- 
vide that  an  existing  President  should  hold  office  until 
his  successor  be  elected.1 

The  above  is  the  process  prescribed  by  the  Twelfth 
Amendment  to  the  Constitution.2  Formerly,  before  this 
Amendment  was  adopted,  the  electors  might  vote  for 
two  persons  without  designating  which  one  was  intended 
for  President  and  which  for  Vice-President.  The  person 
receiving  the  greatest  number  of  votes  was  to  be  Presi- 
dent, provided  that  number  were  a  majority  of  all  the 
electors  appointed ;  and  after  the  choice  of  the  President 
the  one  receiving  the  next  highest  number  of  votes  should 
be  Vice-President,  no  matter  whether  the  votes  cast  for 
him  be  a  majority  of  all  or  not.  John  Adams  was  elected 
Vice-President  in  1796,  although  he  did  not  receive  half 
the  votes.  This  system  soon  led  to  confusion  and  to  a 
disputed  election.  In  the  election  of  1800,  Jefferson  and 
Burr  each  received  the  same  number  of  votes,  Disputed 
each  having  a  majority.  The  electors  desired  Election  of 
to  have  Jefferson  for  President  and  Burr  for  *  twelfth 
Vice-President,  but  the  Constitution  provided  Amendment, 
no  means  of  their  designating  that,  and  when  each  re- 
ceived the  same  number  of  votes  the  election  for  Presi- 
dent was  thrown  into  the  House.     Jefferson  was  elected 

'Burgess,  vol.  ii.,  p.  239. 

2  See  "  A  Study  of  the  Twelfth  Amendment,"  by  Lolabel  House,  Doctor's 
Thesis,  University  of  Pennsylvania,  1901. 


120  The  American  Republic 

there,  but  only  after  a  severe  contest.     This  contest  led 
to  the  adoption  of  the  Twelfth  Amendment,  which  pro- 
vides the  present  mode  of  election. 
Electoral  The   device   of   the    Electoral   College   was 

college  was    adopted  chiefly  for  two  reasons  : 

i.  To  avoid  the  necessity,  on  the  one  hand, 
of  election  by  Congress.  This,  it  was  thought,  would 
have  subjected  the  Executive  to  the  legislature  in  violation 
of  the  principle  of  the  separation  of  powers.  The  Presi- 
dent was  to  be  independent  of  Congress.  He  was  to  be 
dependent  upon  the  people  and  free  to  guard  their  welfare. 
2.  To  avoid,  on  the  other  hand,  direct  popular  election. 
This  was  then  thought  to  be  a  dangerous  democratic  ex- 
treme. The  idea  was  that  the  people  were  not  competent 
to  make  the  election  themselves ;  they  would  be  the  dupes 
of  wily  demagogues  who  would  mislead  and  deceive  them. 
They  were  subject  to  dangerous  excitements  and  passions 
and  were  not  to  be  trusted  with  such  responsibility.  But 
the  people  might  be  allowed  to  elect  the  wisest  and  most 
competent  men  among  themselves,  who  from  their  greater 
knowledge  of  the  needs  of  the  country  and  of  the  eligible 
men  for  the  Presidency  might  go  aside  into  a  deliberative 
assembly  where  they  would  be  free  to  choose  a  fit  man 
Dread  of  Ior  President.  When  it  was  first  proposed  in 
Democracy  j-}ie  Convention  that  the  President  should  be 
stitutionai  elected  by  the  people,  the  member  who  pro- 
convention.  p0sed  ft  »  apologized  for  the  suggestion  ;  he  was 
reluctant  to  declare  the  mode  which  he  favored,  being 
apprehensive  that  it  might  appear  chimerical.  Another 
thought  the  people  too  little  informed,  too  liable  to  de- 
ception, and  it  was  declared  that2  it  would  be  "as  un- 
natural to  refer  the  choice  of  a  proper  character  for  chief 
magistrate  to  the  people  as  it  would  be  to  refer  a  trial  of 

1  Mr.  Wilson,  of  Pennsylvania,  under  date  of  June  r,  1787. 

2  Mr.  Mason  of  Virginia,  under  date  of  July  17,  1787.     See  Debates  of 
the  Convention. 


The  Presidency  121 

colors  to  a  blind  man.  It  was  supposed  that  the  electors 
would  be  the  best  men  in  their  respective  States,  and 
that  in  their  unfettered  discretion  they  would  choose  the 
fittest  man  for  President  in  all  the  country. 

The  failure  of  this  scheme  is  familiar  to  all.  The  an- 
ticipations of  the  framers  in  this  matter  have  been  en- 
tirely disappointed.  It  is  now  known  that  the 
electors  are  not  independent ;  they  are  not  free  e  ofthe 
to  choose  whom  they  will ;  they  do  not  exer-  Electoral 
cise  their  own  discretion.  They  are  chosen 
under  a  pledge  of  honor  to  vote  for  a  particular  candi- 
date. When  they  meet,  the  people  have  already  chosen 
the  President.  The  electors  are  merely  the  character 
agents  of  their  party,  appointed  to  ratify  the  and 

election  already  made.     Who  and  what  they  ofthe 

are,  whether  they  are  the  best  and  wisest  leaders  Electors, 
among  their  respective  States,  no  one  knows  and  no  one 
cares.  The  electors  are  personally  of  so  little  account, 
and  their  standing  and  party  relation  so  little  known, 
that  it  is  now  the  custom  (though  it  is  not  necessary),  to 
place  the  names  of  the  presidential  candidates  at  the  top 
of  the  ticket  on  which  the  electors'  names  are  printed,  so 
as  to  enable  the  voter  to  know  which  set  of  electors  stand 
for  his  party.  As  to  the  personnel  of  the  electors,  it  is 
sought  only  to  know  that  they  will  faithfully  stand  by  the 
party  nominee  and  register  the  result  which  they  are 
elected  officially  to  proclaim.  An  elector  may  be  nomi- 
nated because  he  is  a  good  speaker  and  he  may  be  ex- 
pected to  canvass  his  district  for  his  party,  and  perhaps  he 
will  expect  some  party  appointment  or  reward  after  the 
election  of  his  candidate. 

It  would  be  perfectly  legal  and  constitutional  for  an 
elector  to  vote  for  whom  he  pleases  other  than  his  party 
candidate.  A  Republican  elector  in  any  State  carried  by 
that  party  might  vote  for  the  Democratic  candidate  and 
divide  the  vote  of  the  State  and  thus  defeat  his  party 


122  The  American  Republic 

nominee ;  his  vote  would  have  to  be  counted  as  he  cast  it, 

not  as  he  was  elected  to  cast  it,  and  there  would  be  no 

law    to    punish   the    recreant    elector.       Some 

The  Law  * 

ofthe  extra-legal  punishment  would  probably  be  de- 

stitution vised  for  an  elector  who  refused  to  vote  for  the 
Binds  the  party  candidate  for  whom  he  had  been  elected 
v*Tf«  ^  to  vote>  especially  if  his  vote  contributed  to  his 
the  Party  party's  defeat.  He  would  be  looked  upon  as 
a  traitor  to  his  party  and  his  party's  cause,  and 
he  would  probably  not  find  it  comfortable  to  return 
home.  At  any  rate  he  would  be  ostracized  and  despised 
and  would  be  visited  with  the  social  condemnation  and 
contempt  due  to  one  who  had  been  guilty  of  an  infamous 
betrayal  of  a  public  trust;  and  a  presidential  candidate 
elected  by  such  betrayal  would  probably  not  accept  the 
office.  Public  sentiment  would  be  so  universal  against 
such  an  act,  and  the  party  fealty  of  the  electors  is  so  well 
guarded  that  it  is  safe  to  say  that  no  such  act  is  apt  to 
occur.  No  law  of  the  Constitution  is  stronger  or  more 
inviolable  than  this  unwritten  one  that  a  Presidential 
elector  is  required  to  vote  for  the  party  candidate  selected 
by  the  party  convention  and  the  popular  election.  But 
this  is  a  great  change  in  the  electoral  system  from  what 
our  fathers  intended,  and  from  the  actual  practice  in  the 
first  few  elections. 

How  was  this  change  brought  about?  By  a  change  in 
our  party  customs  and  party  machinery  and  by  the  rise 
causes  of  of  the  representative  party  convention.  To 
the  change,  understand  this  change  fully,  we  must  notice 
the  rise  and  growth  of  our  party  system,  a  subject  con- 
sidered in  a  companion  volume  to  this  work.1 

No  part  of  the  Constitution  was  regarded  with  more 
satisfaction  by  the  framers  than  the  Electoral  College. 
It  is  often  said  that  it  is  about  the  only  original  thing  in 
the  Constitution  —  the  only  actual  invention  of  the  Con- 

1  See  the  author's  Political  Partus  and  Party  Problems. 


The  Presidency  123 

vention  —  not  based  on  an  existing  institution  or  a  pre- 
vious experience,  and  it  is  the  one  part  of  that  instrument 
that  has  utterly  failed  to  fulfil  expectations.  But  while 
this  plan  of  electing  the  President  finds  no  precedent  in 
the  Old  World  it  was  not   entirely  new.      In 

'  Precedent 

the  Constitution  of  Maryland,  adopted  in  1776,  for  the 

we   find   an   almost   exact   counterpart   of   the        Electoral 

■"■  College. 

electoral  scheme.  The  State  Senators  in  Mary- 
land were  elected  by  a  body  of  electors  chosen  every  five 
years  by  the  voters  of  the  State  for  this  particular  pur- 
pose. Bowdoin,  in  the  Massachusetts  Convention  that 
ratified  the  Constitution,  recognized  that  the  method  of 
choosing  the  President  was  probably  taken  from  Mary- 
land's method  of  choosing  Senators.1  "The  mode  of 
appointment  of  the  Chief  Magistrate  of  the  United  States 
is  almost  the  only  part  of  the  system  which  has  escaped 
without  some  censure,  or  which  has  received  the  slightest 
mark  of  appreciation  from  its  opponents."  2 

In  the  first  two  elections  (1789  and  1792)  all  the  electors 
voted  for  Washington  without  question,  though  they 
generally  divided  according  to  party  opinion,  then  form- 
ing, on  the  Vice-President.  In  the  election  of  1796,  the 
electors  were  still  left  unpledged,  but  in  electing  them 
the  voting  was  on  party  lines,  and  when  they  came  to 
cast  their  votes  they  voted  as  they  were  expected  to, — 
the  Federalist  electors  for  Adams,  the  Democratic  electors 
for  Jefferson.  By  1800,  the  notion  of  leaving  any  free- 
dom and  discretion  to  the  electors  had  vanished,  and  it 
has  ever  since  been  agreed  that  the  nation,  not  the 
electors,  must  decide  who  shall  be  President. 

Each  State  is  left  free  to  determine  its  own  method  of 
choosing   the   electors.      The   method    is   now    uniform 

1  See  Publications  of  American  Academy,  No.  9,  cited  in  Stevens's  Sources 
of  the  Constitution,  p.  154. 

2  Federalist,  No.  67  ;  see  also  No.  1  of  the  Federalist,  and  Wilson  in  the 
Pennsylvania  Convention  ;  Elliott,  vol.  ii.,  cited  by  Bryce,  vol.  i.,  p.  41. 


124  The  American  Republic 

throughout  the  States.  They  are  elected  in  each  State 
on  a  common  ticket,  all  the  electors  being  voted  for  by 
„,.   0  all   the   voters,   generally  under  manhood  suf- 

The  States  '     °  J 

Determine  frage.1  Formerly  the  States  chose  the  electors 
Method  of  m  various  ways, — some  by  the  legislature,  some 
choosing  the  directly  by  the  people  on  a  common  ticket,  and 

some  by  the  people  in  districts.  In  1824, 
eleven  of  the  twenty-four  States  elected  by  districts.  By 
1832,  all  but  South  Carolina  and  Maryland  used  the 
method  of  electing  by  popular  vote  on  a  general  ticket. 
South  Carolina  continued  to  elect  her  Presidential  electors 
by  the  legislature  until  the  Civil  War.  The  feeling  that 
the  people  had  been  deprived  of  their  choice  in  1824,  and 
the  Democratic  movement  under  Jackson,  leading  to  a 
change  in  the  party  system,  had  led  in  the  direction  of 
the  more  popular  plan  for  the  election  of  the  President. 
In  1 89 1,  the  Democratic  Legislature  of  Michigan  passed  a 
law  providing  for  the  district  plan  of  election.     Michigan 

is  usually  a  Republican  State,  but  in  the  elec- 

The  District       ,  J  ...         ....,,.  ....  ., 

plan  Revived  tion  of  1 890,  by  a  landslide  in  politics,  the 
in  Michigan,  rjemocrats  carried  the  State  and  secured  a  ma- 
jority of  the  legislature.  In  view  of  the  ap- 
proaching presidential  election  of  1892,  they  provided 
that  Michigan  should  elect  her  Presidential  electors  by 
districts,  as  in  this  way  the  Democrats,  who  expected  to 
lose  the  State  in  1892,  would  be  sure  of  electing  at  least 
a  few  of  the  electors  from  the  various  districts.  It  is  sel- 
dom a  party  carries  all  of  the  Congressional  districts  of 
a  State.  The  Republicans  contested  this  Democratic 
law  before  the  courts,  but  both  the  Supreme  Court  of 
Michigan  and  then  the  Supreme  Court  of  the  United 
States — the  majority  of  each  Court  being  Republicans — 
decided2  in  favor  of  the  constitutionality  of  the  Michigan 

1  There  are  constitutional  restrictions  in  some  Southern  States  barring 
a  large  part  of  the  colored  vote. 

2  The  decision  does  not  support  the  right  of  a  State  to  provide  that  all 


The  Presidency  125 

law.  It  is,  therefore,  the  law  that  the  States  may  deter- 
mine the  method  of  choosing  the  electors.  The  legis- 
lature might  itself  choose  the  electors,  or  authorize  the 
governor  to  appoint  them,  or  cause  them  to  be  selected 
in  any  manner  it  may  deem  best,  by  districts,  by  a  gen- 
eral ticket,  by  a  limited  or  by  a  universal  suffrage.  The 
States  may  also  determine  the  qualification  of  the  electors, 
except  the  qualification  named  in  the  Constitution, — that 
they  "shall  hold  no  office  of  profit  or  trust  under  the 
United  States. "  '  It  is  a  party  custom  that  has  brought 
us  to  the  uniform  system  of  electing  on  a  general  ticket. 
To  make  sure  of  uniformity  the  States  would  have  to 
adopt  a  constitutional  amendment.  The  Michigan  law 
provided  for  choosing  the  Congressional  electors  by  Con- 
gressional districts,  and  the  Senatorial  electors  by  districts 
created  for  that  purpose.  The  law  was  accompanied  by 
an  apportionment  act  (a  gerrymander),  and  thus  the  two 
laws  together  brought  the  electoral  vote  of  the  State 
under  the  influence  of  the  "gerrymander."  President 
Harrison  felt  that  this  would  bring  the  three  great  de- 
partments of  the  Government  within  the  grasp  of  the 
gerrymander  and  would  promote  "disgraceful  partisan 
jugglery"  in  the  choice  of  the  President,  and  he  called 
attention  to  the  necessity  of  reform  in  his  message  of 
December  9,  1891.2 

In  recent  years  much  dissatisfaction  has  arisen  with 
the  Electoral  College,  and  there  is  considerable  demand 
for  its  abolition.  Since  it  has  been  virtually  proposed 
superseded  in  party  practice  it  is  looked  upon      changes  in 

,  .  r  1   •  i-i  Methods  of 

as  a  cumbersome  piece  of  machinery  which  Electing  the 
might  as   well   be    abandoned.      Three   plans      President. 

the  electors  should  be  elected  by  a  single  district,  regardless  of  the  rights 
of  the  other  districts.  In  the  decision  rendered  by  Chief  Justice  Fuller,  a 
careful  consideration  was  made  of  the  various  methods  used  by  the  several 
States  at  different  times  previous  to  the  decision.  See  United  States 
Supreme  Court  Reports,  146.  'Constitution,  Art.  I.,  Sec.  1. 

8  Richardson's  Presidents'  Messages,  vol.  ix.,  p.  208. 


126  The  American  Republic 

have  been  proposed  in  substitution,  each  of  which,  it  is 
claimed,  is  fairer,  more  direct,  and  more  democratic : 

i.  The  District  Plan. — This  is  the  "Michigan  Plan," 
to  which  we  have  referred.  It  involves  the  choice  of  an 
The  District  elector  for  each  Congressional  district  and  two 
plan.  for  each  State  at  large. 

This  would  be  very  much  like  electing  the  President 
by  the  two  Houses  of  Congress,  except  that  the  Sena- 
torial electors  would  be  chosen  by  a  direct  vote  of  the 
people,  and  all  of  them  would  be  chosen  especially  and 
only  for  the  purpose  of  choosing  the  President,  while  the 
members  of  Congress  are  chosen  for  other  purposes. 

2.  The  allotment  of  electoral  votes  in  each  State  to  the 
candidates  in  proportion  to  the  popular  vote  received  by 
each, — the  proportion  to  be  determined  by  the 
Proportional  ProPer  returning  board.  Let  the  presidential 
Represen-  election  be  held  on  the  same  day  in  all  the 
States ;  let  the  States  be  allotted  electors  as 
they  now  are,  and  in  ascertaining  the  result  let  each  can- 
didate voted  for  be  entitled  to  have  counted  in  his  favor 
a  number  of  electoral  votes  corresponding  to  the  number 
of  popular  votes  received  by  him.  This  plan  would  not 
impair  the  rights  and  powers  now  possessed  by  the  States 
in  the  election  of  the  President ;  nor  would  it  involve 
election  by  a  majority  or  plurality  of  all  the  popular  vote 
cast  in  the  United  States.  This  would  not  disturb  the 
"compromises  of  the  Constitution  "  by  swamping  the 
small  States  and  reducing  them  to  insignificance,  for  each 
State  would  still  be  awarded  three  electoral  votes,  two 
for  its  Senators  and  one  for  its  Representative,  regardless 
of  its  number  of  inhabitants.  It  would  appear  useless 
under  this  plan  to  vote  for  electors,  for  a  State  election 
board  could  allot  the  vote  of  the  State  to  the  respective 
candidates  according  to  mathematical  proportion.1  This, 
like    the    District    Plan,    involves    the    retention    of   the 

1  See  Prof.  J.  R.  Commons's    "  Proportional    Representation  "    for   an 


The  Presidency  127 

Electoral  College  but  it  provides  also  for  more  accurate 
proportional  representation. 

3.  The  abandonment  of  the  Electoral  scheme  entirely, 
by  providing  for  the  choice  of  the  President  by  direct 
popular    vote.       If    the    McKinley    majorities 
from   the  States    carried   by   the   Republicans  Direct 

footed  up  more  than  the  Bryan  majorities  from  Popular 

the  Democratic  States,  Mr.  McKinley  would 
be  declared  elected.  For  electoral  purposes  under  this 
plan  the  relation  of  the  States  to  the  Federal  Government 
would  be  the  same  as  that  of  the  counties  to  a  State. 
Any  vote  anywhere  would  count  the  same  in  the  aggre- 
gate, and,  therefore,  in  determining  the  result.  This 
would  involve  an  abandonment  of  an  election  by  States, 
and  would  consider  the  country  for  the  purpose  of  the 
presidential  election  as  a  consolidated  nation,  to  be  gov- 
erned by  the  simple  numerical  majority. 

A  few  words  as  to  proposed  changes. 

Under  the  present  system  the  party  electors  in  a  State 
are  usually  all  lost  or  won  together.1  It  is  senseless  to 
scratch  an  elector  for  personal  reasons,  for  if  why  a 

that  were  generally  done  by  the  party  voters  it  change  is 
would  result  merely  in  losing  an  electoral  vote 
in  the  State  for  the  candidate  of  the  voters'  choice.  The 
first  two  plans  proposed,  while  retaining  the  Electoral 
College,  would  allow  the  minority  some  representation 
and  make  the  College  more  representative  of  the  popular 
vote.     For  illustration,  in  1884,  the  outcome  of  a  hotly 

elaboration  of  this  principle.     Also  John  G.  Carlisle  in  the  Forum,  No.  24, 
p.  651,  "  Remedy  for  Dangerous  Defects  in  Election  of  the  President." 

1  When  a  State  is  carried  by  a  very  close  vote,  it  sometimes  happens  that 
one  or  two  electors  of  the  defeated  party  may  win.  Under  the  Australian 
system  of  voting,  many  voters  have  been  known  to  stamp  merely  the  first 
elector  on  their  party  list  under  the  mistaken  supposition  that  by  so  doing 
they  were  voting  for  the  whole  list.  In  this  way,  and  sometimes  for  per- 
sonal reasons,  some  electors  receive  more  votes  than  others.  The  reason- 
able expectation  is  that  they  should  all  run  together. 


128  The  American  Republic 

contested  Presidential  election  depended  upon  the  out- 
come in  the  State  of  New  York.  Whichever  party  carried 
that  State  would  win.  About  1,125, OCX)  votes  were  cast 
in  the  State.  The  Democratic  candidate,  Mr.  Cleveland, 
received,  say,  563,000  votes,  while  the  Republican  candi- 
date, Mr.  Blaine,  received  562,000  votes.  Mr.  Cleveland 
received  only  about  one  thousand  plurality  in  the  State, 
but  he  secured  all  of  the  thirty-six  electoral  votes  from 
New  York,  while  Mr.  Blaine  received  none.  The  562,000 
Republican  votes  went  for  nothing.  They  could  not  go 
to  help  out  the  party  cause  in  other  parts  of  the  Union. 
If  the  thirty-six  New  York  electors  could  have  been 
divided  between  the  parties  somewhat  in  proportion  to  the 
popular  vote,  the  Democrats  could  have  elected  not  more 
than  nineteen  electors,  while  the  Republicans  would  have 
chosen  at  least  seventeen.  Then  the  562,000  minority 
votes  would  have  had  some  voice  and  representation  in 
the  Electoral  College.  Either  the  Proportional  or  the 
District  plan  would  break  up  the  solidarity  of  the  State. 
The  present  plan,  by  which  the  State  may  throw  its  whole 
weight  into  one  side  of  the  scale,  magnifies  the  importance 
of  the  State  as  such.  It  provides  for  election  by  States. 
It  is  in  harmony  with  the  original  federal  idea  of  the 
Constitution  that  the  States  should  be  the  agencies  in 
the  election  of  the  President,  though  on  a  proportional 
basis.  This  is  clearly  shown  in  the  mode  provided  in  the 
eventual  election  of  the  President  when  the  election  is 
thrown  into  the  House,  where  each  State  delegation 
casts  one  vote.  The  States,  especially  the  large  ones,  will 
hardly  give  up  their  preponderant  importance  in  the 
present  plan  of  electing  the  President.  But  experience 
has  shown  that  the  present  plan  concentrates  the  struggle 
in  the  doubtful  States,  especially  in  the  large  doubtful 
States,  for  the  party  carrying  these  will  carry  the  elec- 
tion ;  while  in  the  States  safely  assured  to  either  party 
the  campaign  is  listless  and  lifeless  and  without  instruc- 


The  Presidency  129 

tion.  If  the  forces  of  boodle  and  corruption  have  but  to 
carry  a  few  States  in  order  to  win  they  are  encouraged  in 
their  work,  for,  in  order  to  win,  they  have  but  to  concen- 
trate their  energies.  In  this  way  the  political  electorate 
of  New  York  and  Indiana  have  especially  suffered  from 
pollution  and  corruption  during  past  presidential  cam- 
paigns. If  the  proportional  plan  of  election  were  sub- 
stituted every  vote  would  count  in  every  State.  The 
Republicans  would  be  encouraged  to  make  a  campaign  in 
Texas  in  the  hope  of  securing  a  few  electors,  and  the 
Democrats  would  make  a  similar  effort  in  Iowa  or  Ver- 
mont, and  men  of  all  parties  would  be  directly  interested 
throughout  the  Union  in  preserving  the  purity  and  safety 
of  the  ballot  everywhere. 

There  is  one  important  if  not  decisive  objection  to  the 
District  Plan.  That  is,  it  would  lead  to  still  greater 
temptation  to  the  party  managers  within  the 

i   r-  ,  f  ,     ,-  Objection  to 

several  States  to  gerrymander  the  electoral  dis-  the  District 
tricts.1     If  the  evils  of  the  party  gerrymander     Plan-   The 

.  .  1  Gerrymander. 

can  be  obviated  and  fair  proportional  represen- 
tation provided  for  within  all  the  States,  the  District  Plan 
of  electing  the  President  would  seem  to  be  preferable  to 
the  present  one.  It  would  be  as  just,  more  democratic, 
and  quite  as  expedient ;  and  the  change  would  probably 
be  more  feasible  than  that  of  direct  election  by  the 
people   in    which   the   decision   would   depend 

•    ,  .    .  .  A  President 

upon  the  aggregate  majorities  from  the  various  maybe 

States.  Elected  in 

Spite  of 

A  President  has  frequently  been  elected  who  an  Adverse 
has   not    received  a  majority  of '  the  popular       ,.Popular 

J  J  r     r  Majority. 

vote.1 

1  See  reference  to  President  Harrison's  message,  p.  125. 

2In  1824,  Jackson  had  152,901  votes  while  Adams  received  only  114,000. 
In  the  College,  Adams  had  87  and  Jackson  71.  The  combined  vote  of  the 
candidates  opposed  to  Adams  was  247,000.  Thus  Adams  received  neither 
a  majority  nor  a  plurality  of  the  popular  vote.     His  election  by  the  House, 


130  The  American  Republic 

Twice  an  election  has  been  thrown  into  the  House  of 
Representatives:  in  1800,  when  Jefferson  was  first  elected, 
Elections  and  in  1824,  when  John  Quincy  Adams  was 
by  the  elected.     In  such  a  case,  all  the  members  of 

House  of  i-i  11  • 

Represen-  the  House  from  a  State  having  but  a  collective 
tatives.  vote,  if  they  are  equally  divided  on  the  candi- 

dates the  vote  of  the  State  is  lost.  In  1801,  Bayard,  of 
Delaware,  though  a  Federalist,  following  the  advice  of 
Hamilton,  cast  the  vote  of  that  State  for  Jeffer- 
son to  compass  the  defeat  of  Burr.  The  Fed- 
eralists, controlling  a  majority  of  the  State  delegations, 
had  it  in  their  power  to  elect  the  President,  but  they  had 
to  choose  between  Jefferson  and  Burr.  Party  spirit  was 
very  bitter  at  the  time,  and  some  of  the  Federalists  ad- 
vised that  the  country  be  left  without  a  President  rather 
than  consent  to  the  election  of  the  hated  leader  of  their 
opponents;  while  others  advised  the  election  of  Burr 
without  reference  to  the  interest  of  the  country,  in  order 
to  bring  about  the  disappointment  and  discomfiture  of 
the  Jeffersonian  Democrats.  In  1824,  Jackson 
In  '  24'  had  ninety-nine  electoral  votes,  while  Adams 

had  only  eighty-four.  Clay  had  thirty-seven,  and  Craw- 
ford forty-one.  The  election  went  to  the  House,  where, 
by  the  influence  of  Clay,  who  could  not  be  voted  for, 
being  fourth  on  the  list,  John  Quincy  Adams  was  elected. 
This  was  thought  to  thwart  the  will  of  the  people,  and 

voting  by  States,  gave  rise  to  the  cry  that  the  people  had  been  deprived  of 
their  choice. 

In  1856,  Buchanan  had  1,838,000,  Fremont  1,341,000,  and  Fillmore 
874,000  of  the  popular  vote.  Buchanan  thus  fell  188,000  votes  short  of 
half  ;  or,  there  were  377,000  more  votes  cast  against  him  than  for  him. 
Yet  Buchanan  received  174  electoral  votes,  Fremont  114,  Fillmore  8. 

In  i860,  Lincoln  had  1,866,000,  Douglas  had  1,376,000,  Breckinridge 
had  849,000,  Bell  had  588,000.  Lincoln  fell  473-QOO  short  of  a  majority 
over  all,  while  there  were  949,000  more  votes  against  him  than  for  him. 
Yet  of  the  electoral  vote  Lincoln  had  180,  Douglas  had  12,  Breckinridge 
had  72,  Bell  had  38.  See  Stanwood's  History  of  the  Presidency  for  cases 
in  point  since  i860. 


The  Presidency  131 

it  was  charged  that  a  corrupt  coalition  was  made  between 
Adams  and  Clay.  Clay  was  afterwards  made  Secretary 
of  State  by  Adams,  which  gave  color  to  the  charge,  but 
there  was  not  a  bargain,  corrupt  or  otherwise,  between 
the  two  men.  But  Jackson  and  his  friends  always  felt 
that  the  people  had  been  deprived  of  their  choice,  and  this 
election  tended  to  increase  the  democratic  movement  for 
a  direct  popular  choice  of  the  electors  and  for  a  more 
popular  system  of  party  nominations.  By  the  time  of 
Jackson's  second  election,  in  1832,  the  representative 
party  convention  system  was  coming  into  use. 

In  1876,  there  was  a  still  more  serious  dispute  over  the 
presidential  election, — a  dispute  which  clearly  illustrated 
an  almost  fatal  weakness  in  the  system  of  elect- 

Contested 

ing  a  President  by  the  Electoral  College.  In  Election 
that  election  there  were  369  electoral  votes,  185  of  l8y6- 

being  necessary  to  a  choice.  The  Democratic  candidate, 
Mr.  Tilden,  carried,  without  dispute,  184  votes,  lacking 
only  one  of  enough  to  elect ;  the  Republican  candidate, 
Mr.  Hayes,  had  163  votes.  In  four  States, — Oregon, 
Florida,  South  Carolina,  and  Louisiana,  with  twenty-two 
electoral  votes,  there  were  disputed  returns.  If  in  any 
one  of  these  States  the  Democratic  Electors  were  found 
to  have  been  chosen,  Mr.  Tilden  would  have  a  majority 
in  the  College  and  would  be  elected ;  while  the  Republi- 
cans in  order  to  elect  their  candidate  must  have  all  of  the 
twenty-two.  Of  course,  the  Republicans,  as  loyal  party 
men,  laid  claim  to  all  these  doubtful  States,  and  the 
Democrats  did  the  same,  though  the  Democrats  would 
have  been  satisfied  with  only  one.  In  the  disputed  States 
the  two  sets  of  electors  met,  voted,  and  sent  up  the  certi- 
fied returns  to  Washington.  In  Congress  the  Republicans 
had  a  majority  in  the  Senate,  while  the  Democrats  had  a 
majority  in  the  House.  As  to  counting  the  electoral 
vote  the  Constitution  says  :  "The  President  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 


i32  The  American  Republic 

sentatives,  open  all  the  certificates  and  the  votes  shall  then 
be  counted."  Who  shall  do  the  counting?  The  Repub- 
licans contended  that  the  Vice-President  (Senator  Ferry, 
of  Michigan,  a  Republican)  should  determine  what  votes 
should  be  counted.  But  the  Democrats  insisted  that  the 
two  Houses,  voting  separately,  had  always  determined 
the  validity  of  electoral  votes,  and  as  Congress  was 
called  upon  by  the  Constitution  to  witness  the  count, 
it  was  reasonable  to  conclude  that  Congress  itself  was 
the  responsible  counting  body.  This  might  do,  pro- 
vided the  two  Houses  were  in  agreement,  with  the  same 
party  in  control  of  both,  but  in  this  case  they  were  in 
disagreement  and  a  deadlock  between  the  two  Houses 
would  be  the  result.  For  it  was  understood,  and  it 
had  always  been  so,  that  in  such  cases  the  two  Houses 
would  vote  from  party  motives  and  according  to  party 
interests. 

To  break  this  deadlock  between  the  two  Houses  in 
1876,  in  order  that  some  election  might  be  made,  the 
„,_   „,         ,  leaders  on  each  side  agreed  to  the  establishment 

The  Electoral  & 

commission  by  law  of  an  Electoral  Commission,  to  which 
of  1876.  should  be  referred  all  the  disputed  cases.     The 

Commission  was  made  to  consist  of  five  Senators,  five 
Representatives,  and  five  members  of  the  Supreme  Court. 
The  Republican  Senate  elected  to  the  Commission  three 
Republicans  and  two  Democrats;  the  Democratic  House 
appointed  three  Democrats  and  two  Republicans.  So 
far  there  was  a  party  tie.  From  the  Supreme  Court 
there  were  to  be  appointed,  according  to  the  law,  two 
Republicans  and  two  Democrats,  and  these  four  were  to 
elect  a  fifth.  Justice  Davis,  a  liberal  Republican,  much 
inclined  at  this  time  in  his  party  relations  toward  the 
Democrats,  would  probably  have  been  elected  as  the 
fifteenth  member  of  the  Commission  had  he  not  just 
accepted  an  election  to  the  United  States  Senate  from 
the  State  of  Illinois.     This  allowed  the  choice  as  the  fifth 


The  Presidency  133 

member  of  the  Supreme  Court  to  fall  upon  Justice  Brad- 
ley, a  Republican. 

"This  choice  practically  settled  the  result,  for  every  vote 
given  by  the  members  of  the  Commission  was  a  strict  party 
vote.  All  the  points  in  dispute  were  settled  by  a  vote  of  eight 
to  seven  in  favor  of  the  returns  transmitted  by  the  Republican 
Electors  in  the  four  disputed  States,  and  Mr.  Hayes  was  ac- 
cordingly declared  elected  by  a  majority  of  185  electoral  votes 
against  184."  ' 

Mr.  Tilden  and  the  Democrats  accepted  the  result, 
though  there  was  much  dissatisfaction  and  complaint. 
Some  of  the  Democrats  of  the  House  attempted  to  pre- 
vent acquiescence  in  the  result  and  the  declaration  of 
Hayes's  election  by  a  process  of  filibustering  until  after 
March  4th,  but  they  were  prevented  from  accomplish- 
ing their  purpose  by  the  decisions  of  the  Speaker,  Mr. 
Randall.2  There  was  much  excitement  and  uncertainty 
throughout  the  country  and  not  a  little  danger  of  civil 
commotion,  if  not  of  civil  war,  so  great  was  the  party 
stake  involved  in  the  decision.  The  Constitution  does 
not  itself  expressly  provide  for  the  settlement  of  such  a 
dispute,  but  it  vests  in  Congress  the  power  to 
make  provision  by  law.  Of  the  two  opposing  Presidential 
contentions  at  the  time,  one  held  that  the  Con-  Elections, 
stitution  itself  provided  for  the  counting  of  the 
electoral  votes,  the  other  that  the  Constitution  merely 
vests  in  Congress  the  power  to  provide  by  law  for  the 
count.     The  latter  view  is  now  generally  accepted.3 

The  result  of  this  dispute  was  the  passage  of  an  act, — 
though  tardily  passed  ten  years  later,  on  February  3,  1887, 

1  See  an  article  on  "  A  Crisis  in  Our  Country's  History,"  Century  Maga- 
zine, Nov.,  1 901. 

*  See  page  277. 

3  Burgess,  Political  Science,  vol.  ii.,  pp.  228-229;  Congressional  Record, 
vol.  xvii. 


134  The  American  Republic 

— providing  a  process  of  settling  disputed  presidential  elec- 
tions. The  act  is  intended  to  provide  against  the  recur- 
rence of  the  danger  of  1876.  The  act  provides  that  the 
President  of  the  Senate,  in  the  presence  of  the  two 
Houses,  shall  open  the  certificates  of  the  electoral  votes 
of  the  States  in  alphabetical  order;  these  shall  be  handed 
to  the  tellers  to  be  read;  the  President  of  the  Senate 
shall  call  for  objections,  if  any;  these  objections  shall  be 
in  writing  without  argument,  signed  by  at  least  one  mem- 
ber from  each  House;  when  an  objection  is  made,  the 
Houses  shall  separate  to  consider  and  decide  upon  the 
objection ;  no  electoral  vote  from  any  State  may  be  re- 
jected from  which  but  one  return  has  been  received  un- 
less the  two  Houses  acting  separately  so  decide,  and  then 
the  rejection  is  made  by  the  concurrent  resolution  of  both 
Houses  when  they  again  meet  together.  The  time  of 
casting  the  electoral  vote  is  changed  from  the  first 
Wednesday  in  December  to  the  first  Monday  in  January. 
This  is  for  the  purpose  of  allowing  the  excitement  follow- 
ing the  election  to  subside,  and  to  give  the  States  more 
time  to  settle  any  disputes  which  may  arise.  The  electoral 
votes  are  to  be  counted  by  Congress  on  the  second 
Wednesday  in  February.  The  act  provides  that  tribunals 
appointed  by  and  in  each  State  shall  determine  what 
electoral  votes  from  the  State  are  legal  votes,  and  the 
determination  of  the  State  tribunal  shall  be  considered 
final.  When  there  are  two  or  more  sets  of  tribunals  in  a 
State  and  they  send  in  conflicting  returns,  that  return 
shall  be  counted  which  the  two  Houses  acting  concur- 
rently shall  accept ;  when  there  is  one  State  government 
and  two  returns  are  sent  in,  that  one  shall  be  counted 
which  is  supported  by  the  Executive  of  the  State,  unless 
both  Houses,  acting  separately,  shall  decide  that  it  is  not 
the  lawful  vote  of  the  State.  If  the  State  has  appointed 
no  such  tribunal,  the  two  Houses  of  Congress  shall  de- 
termine which  votes  are  legal,  if  two  sets  of  returns  ap- 


The  Presidency  135 

pear.  If  the  Houses  differ,  the  vote  of  the  State  is  lost. 
This  throws  the  responsibility  for  the  settlement  of  dis- 
puted elections  within  a  State  back  upon  the  State  itself. 
If  a  State  does  not  settle  its  own  dispute  it  runs  the  risk 
of  losing  its  vote.  It  must  settle  its  dispute  in  accordance 
with  a  law  passed  before  the  electors  are  chosen,  and  the 
decision  must  be  made  at  least  six  days  before  the  meet- 
ing of  the  electors.  Congress  can  then  not  subvert  the 
decision  so  reached,  except  in  the  cases  described.  Un- 
fairness may  be  done  in  the  State ;  but,  as  Mr.  Bryce  says, 
"unfairness  is  better  than  uncertainty,"  in  such  a  case.1 

Both  the  President  and  the  Vice-President  must  be 
native-born  citizens  of  the  United  States,  thirty-five  years 
of  age,  and  have  been  for  at  least  fourteen  years  QuaUfications 
residents  within  the  United  States.     "Citizens  of  the 

of  the  United  States  at  the  time  of  the  adop- 
tion of  this  Constitution  "  were  made  eligible.  This  was 
inserted  in  the  Constitution  out  of  regard  for  the  great 
men  like  Hamilton  and  Wilson  and  others  who,  though 
not  natives,  had  with  patriotism  and  self-sacrifice  aided 
in  establishing  our  independence  and  in  making  our  Con- 
stitution. "Native  born"  is  interpreted  to  mean  born 
within  the  jurisdiction  of  the  United  States.  This  may 
be  on  American  vessels  while  in  foreign  ports,  or  in 
American  embassies  and  consulates,  all  of  which,  by  the 
principle  of  ex-territoriality,  are  considered  as  within  the 
United  States  and  under  the  jurisdiction  of  our  laws. 
Therefore  children  born  to  our  ambassadors,  consuls,  and 

1  The  bill  proposed  by  Senator  Morton,  of  Indiana,  in  1875,  provided 
that  a  concurrent  vote  of  both  Houses  should  be  required  to  throw  out  a 
disputed  return.  In  case  of  double  returns  from  a  State,  that  one  should 
be  counted  which  the  two  Houses,  voting  separately,  decided  to  be  the  right 
one.  In  case  the  Houses  failed  to  agree,  the  vote  of  the  State  was  lost. 
The  Democrats  could  have  seated  Tilden  under  this  in  1876,  as  the  votes 
of  the  four  disputed  States  could  not  have  been  counted.  See  Stanwood's 
History  of  the  Presidency,  pp.  452-456.  See,  also,  Burgess,  Political  Science, 
vol.  ii.,  chap,  iii.,  for  a  full  and  able  discussion  of  the  law  of  1887. 


136  The  American  Republic 

naval  officers  while  abroad  are  eligible  to  the  offices  of 
President  and  Vice-President.  The  same  is  true  of  chil- 
dren born  to  American  citizens  while  travelling  or  so- 
journing in  foreign  countries.  An  American  does  not 
lose  his  citizenship  by  travelling  or  by  a  temporary  resi- 
dence abroad.  The  full  rights  of  citizenship  descend  to 
the  children,  whether  born  at  home  or  abroad.  On  the 
other  hand,  children  born  in  America  to  foreign  repre- 
sentatives, "extra-territorial  persons,"  would  not  be 
eligible.  Whether  a  natural-born  citizen  who  afterwards 
became  a  naturalized  citizen  of  another  country  would  be 
eligible  to  the  Presidency  is  a  question.  He  probably 
would  not  be,  as  the  President  must  be  a  citizen  as  well 
as  native-born.  "The  President  is  the  representative  of 
the  interests  of  the  country  against  foreign  countries. 
His  entire  interests  should  be  with  his  own  country."  ' 

"The  President  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  increased 
salary  of  the  nor  diminished  during  the  period  for  which  he 
President.  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the  United 
States"  or  from  any  State.2  The  salary,  formerly 
twenty-five  thousand  dollars,  is  now  fifty  thousand  dol- 
lars a  year,  together  with  the  use  of  the  White  House. 

The  person  of  the  President  is  inviolable.  "He  can- 
not be  arrested,  or  restrained  of  his  personal  liberty  by 
The  anybody  for  anything,  not  even  for  the  com- 

presidentis  mission  of  murder.  He  is  responsible  only  to 
from  Legal  the  Senate  by  impeachment.  During  his  im- 
Process.  peachment  trial  he  cannot  be  arrested,  or  in 
any  manner  restrained,  nor  forced  to  appear  in  person 
before  the  tribunal,  nor  to  give  testimony,  nor  be  de- 
prived of  any  of  his  powers  as  President.  Such  are  the 
postulates  of  political  science  which  the  Constitution  im- 

1  Burgess,  Political  Science  and  Constitutional  Law,  vol.  ii. ,  p.  242. 

2  Constitution,  Art.  IT.,  Sec.  1,  CI.  7. 


The  Presidency  137 

plies.  It  is  impossible  to  make  the  supreme  executive 
head  of  the  government  subject  to  process  without  ulti- 
mately destroying  all  power  to  execute  process, — i.  e., 
without  disorganizing  the  Government.  It  is  impossible 
to  make  the  executive  head  of  the  Government  of  the 
United  States  subject  to  process  without  destroying  the 
unity  of  the  executive  power,  without  placing  a  part  of 
the  power  to  execute  the  laws  under  the  control  of  some 
other  person  than  the  President ;  and  this  the  Constitu- 
tion forbids,  in  that  it  vests  the  whole  executive  power 
in  the  President.  It  is  impossible  to  execute  any  process 
upon  the  President  of  the  United  States  should  he  resist 
it,  for  the  Constitution  makes  the  whole  machinery  of 
execution  subject  ultimately  to  his  command.  More- 
over, the  Constitution  vests  in  the  President  the  un- 
limited power  of  pardon,  except  for  impeachment.  He 
could,  therefore,  if  made  subject  to  the  ordinary  process 
of  law,  free  himself  by  pardoning  himself.1 

This  exemption  from  process  of  the  Courts  is  only 
temporary,  the  right  of  prosecution  is  only  suspended. 
Upon  his  retirement  or  removal  from  office,  the  ex- 
President  becomes  immediately  liable  to  prosecution  and 
punishment  for  every  crime  committed  while  in  office. 

The  President  is  removable  only  by  impeachment.  In  case 
of  his  removal  by  impeachment,  or  in  case  of  his  death,  re- 
signation, or  inability  to  discharge  the  duties  and  The  vice- 
powers  of  his  office,  the  Vice-President  becomes  President. 
President.  The  Vice-President  is  chosen  in  the  same  way 
as  the  President,  and  his  qualifications  are  the  same. 

The  Vice-President  has  but  two  functions, — to  preside 
over  the  Senate  and,  in  the  constitutional  emergency,  to 
succeed  to  the  Presidency.  He  does  not  ap-  Functionsof 
point  the  committees;  they  are  elected  by  the  the  vice- 
Senate.  He  is  not  a  member  of  the  Senate,  and 
cannot  vote  except  to  give  a  casting  vote  in  case  of  a  tie. 

'Burgess,  Political  Science,  vol.  ii.,  pp.  245-246. 


138  The  American  Republic 

Politically,  the  office  of  Vice-President  is  of  but  little 
importance,  and  it  has  been  said  that  to  elect  a  capable 
man  to  the  Vice-Presidency  is  merely  to  retire  him  into 
"harmless  and  innocuous  obscurity."  The  party  con- 
ventions in  making  nominations  to  this  office  generally 
use  the  place  to  placate  a  defeated  faction  in  the  contest 
for  the  presidential  nomination,  or  to  bring  on  to  the 
ticket  a  representative  of  a  certain  section  of  the  country 
other  than  that  of  the  presidential  nominee.  The  ability 
and  public  record  of  the  nominee  are  not  duly  considered, 
and  the  result  is  that  obscure  and  second-rate  men  are 
apt  to  be  nominated  for  Vice-President.  The  office  is  an 
important  one  in  its  possibility,  and  no  man  that  the  party 
and  the  country  are  not  willing  to  have  for  President 
should  ever  be  named  for  Vice-President.  Five  times  in 
our  history  the  President  has  died  in  office,  and  the  Vice- 
Vice.  President  has   succeeded  to  his  place.     Tyler 

presidents      took  the  elder  Harrison's  place  in  1841 ;  Fill- 

Succeeding  . 

to  the  more  succeeded  to  Taylor  in  1850,  Johnson  to 

Presidency.  Lincoln  in  1 865,  Arthur  to  Garfield  in  1881, 
and  Roosevelt  to  McKinley  in  1901.  In  each  of  two 
cases, — of  Tyler  and  Johnson, — the  succeeding  Vice-Presi- 
dent seriously  disappointed  and  disrupted  his  party.1  To 
"Tylerize  "  or  to  "Johnsonize  "  is  to  desert  the  party 
that  elevated  one  to  his  office.  But  this  should  not  be 
understood  to  mean  that  Tyler  and  Johnson  were  political 
apostates,  that  they  had  deserted  their  principles.  Tyler 
had  never  been  a  Whig,  nor  Johnson  a  Republican.  The 
Whigs,  without  publishing  a  platform  of  principles,  took 
up  Tyler  in  1840,  because  he  had  broken  with  Jackson 
and  the  regular  Democrats.  Tyler  was  a  representative 
of  the  extreme  States'  rights  Democracy  of  the  South 
who  had  resigned  his  Senatorship  rather  than  obey  the 
instructions  of  the  Virginia  legislature  to  support  Jackson. 
The  Whigs  wished  to  attach  the  Tylerites  to  the  support 
'Historical  note.     See  Bryce,  vol.  i.,  p.  300. 


The  Presidency  139 

of  Harrison.  "Translated  into  the  terms  of  the  politics 
of  continental  Europe,  the  Whig  ticket  represented  a 
union  of  the  right  and  the  extreme  left  against  the 
centre."1  In  1864,  the  Republicans  put  Johnson,  a 
Democratic  Unionist  of  the  South  on  their  ticket,  in  order 
to  make  their  party  a  national-union  party,  to  avoid  the 
charge  of  sectionalism,  and  to  draw  Middle-State  support. 
When  these  two  men  came  to  the  chief  office  they  in- 
evitably disappointed  the  main  body  of  the  men  who  had 
elected  them.  Party  tickets  are  not  now  so  incongruous. 
Yet  even  in  late  years  it  has  been  thought  "good  politics" 
to  go  so  far  in  bidding  for  support  or  in  placating  a  de- 
feated faction  as  to  place  upon  the  ticket  for  Vice-Presi- 
dent a  candidate  who  on  public  policies  and  in  political 
tendencies  differs  very  materially  from  his  party  chief. 
When  party  managers  nominate  a  Vice-President,  they 
must  be  ready  for  the  utmost  possible.  The  men  who 
defeated  General  Grant  and  nominated  Garfield  did  not 
expect  to  make  Mr.  Conkling's  first  lieutenant  (Arthur) 
President  of  the  United  States.  If  Mr.  Cleveland  had 
died,  either  Mr.  Hendricks  or  Mr.  Stevenson  would  have 
reversed  his  financial  policy.  The  clever  gentlemen  who 
planned  to  shelve  Mr.  Roosevelt  by  placing  him  where  he 
could  not  circumvent  their  schemes  did  not  know  what 
fate  had  in  store.  President  Roosevelt,  who  has  lately 
succeeded  to  his  high  office  under  such  direful  circum- 
stances, stood  in  complete  party  and  public  accord  with 
his  predecessor.  His  nomination  to  the  Vice-Presidency, 
one  of  the  most  fitting  ever  made,  exemplifies  very  fully 
his  own  characterization  of  the  office: 

"The  Vice-President  should,  so  far  as  possible,  represent 
the  same  views  and  principles  which  have  secured  the  nomina- 
tion and  election  of  the  President,  and  he  should  be  a  man 

1  Theodore  Roosevelt,  American  Ideals,  p.  228  ;  Review  of  Reviews, 
Sept.,  1896. 


140  The  American  Republic 

standing  well  in  the  councils  of  the  party,  trusted  by  his  fellow 
party  leaders  and  able  in  the  event  of  an  accident  to  his  chief 
to  take  up  the  work  of  the  latter  just  where  it  was  left.  .  .  . 
One  sure  way  to  secure  this  desired  result  would  undoubtedly 
be  to  increase  the  power  of  the  Vice-President.  He  should 
always  be  a  man  who  would  be  consulted  by  the  President  on 
every  great  party  question.  It  would  be  very  well  if  he  were 
given  a  seat  in  the  Cabinet.  It  might  be  well  if,  in  addition 
to  his  vote  in  the  Senate  in  the  event  of  a  tie,  he  should  be 
given  a  vote,  on  ordinary  occasions,  and  perchance  on  occa- 
sions a  voice  in  the  debates."  ' 

The  Vice-President  under  Mr.  Roosevelt  is  his  Secre- 
tary of  State,  but  in  case  of  his  re-election  there  would 
be  nothing  in  the  way  of  his  calling  his  elected  Vice- 
President  to  a  seat  in  his  Cabinet  councils.  John  Adams, 
a  man  of  energy  and  action,  complained  of  the  office  of 
Vice-President  while  he  held  it  as  one  wholly  insignifi- 
cant, "the  only  situation  in  the  world  where  firmness  and 
patience  were  useless,"  yet  he  was  consulted  by  Wash- 
ington in  many  of  the  most  important  measures  of  State, 
in  the  same  manner  as  were  the  heads  of  departments.8 

A  vacancy  in  the  presidential  office  may  occur  in  several 
ways : 

(a)  By  death. 

The  \    J       J 

presidential        (b)  By  impeachment, 
vacancy.  ^  By  resignation. 

The  President  may  resign  at  discretion.  He  would 
address  his  resignation  to  Congress.  The  evidence  of 
resignation  is  his  letter  "delivered  into  the  office  of  the 
Secretary  of  State."  3 

(d)  By  inability  to  discharge  the  duties  and  powers  of 
the  office.      No   one   is  authorized  to   determine  when 

1  American  Ideals,  pp.  231-232. 

*  Adams's  Works,  vol.  ix.,  p.  573  ;  Lolabel  House's  Twelfth  Amendment, 
p.  38.  The  influence  of  the  Twelfth  Amendment  in  affecting  the  incumbent 
of  the  Vice-Presidential  office  is  thoughtfully  considered  in  this  thesis. 

'Statutes,  Act  of  1792,  March  1. 


The  Presidency  141 

disability  exists.  Professor  Burgess  suggests  that  this 
should  have  been  left  to  the  two  Houses.1  In  1881, 
President  Garfield  lay  at  the  point  of  death  for  more  than 
two  months,  quite  unable  to  perform  the  duties  of  his 
office.  Vice-President  Arthur  did  not  succeed  to  the 
office  during  this  inability  of  the  President;  if  he  had 
claimed  the  right  to  do  so  and  the  claim  had  been  tested 
in  law  there  might  have  been  difficulty  and  embarrass- 
ment. The  secretaries  of  President  Garfield  conducted 
the  Executive  office. 

(/)  By  refusal  of  the  newly  elected  President  to  accept 
the  office.  This  has  never  occurred  and  is  not  apt  to 
occur. 

In  case  a  Vice-President  who  may  have  succeeded  to 
the  Presidency  should  die  (which  has  never  happened),  it 
was  formerly  provided  (by  a  law  of  1792,  not 
by  the  Constitution)  that  the  President  pro  tern.    presidentiai 
of  the  Senate  should  succeed  to  the  place  as      succession 

r  Act  of  1886. 

acting  President.  Failing  the  President  pro 
tern,  of  the  Senate,  the  Speaker  of  the  House  succeeded. 
There  were  three  objections  to  this:  1.  If  the  President 
and  Vice-President  should  both  die  during  the  interim 
between  the  expiration  of  one  Congress  and  the  meeting 
of  the  next,  there  might  be  no  President  of  the  Senate 
and  there  certainly  would  be  no  Speaker  of  the  House. 
2.  If  the  Presidency  were  filled  by  either  of  these  officers, 
it  would  be  placing  a  member  of  the  legislative  depart- 
ment in  the  executive  chair.  Thus  the  Executive  would 
be  chosen  by  the  legislative  department  and  he  would  feel 
his  dependence  on  them.  Even  this  temporary  subordi- 
nation of  the  Executive  to  the  Legislative  would  be  con- 
trary to  the  spirit  and  purpose  of  independent  and 
co-ordinate  branches  of  government.  3.  By  this  system 
of  succession,  a  President  of  the  Senate  or  a  Speaker  of 
the  House  of  a  different  party  from  the  chosen  President 

1  Vol.  ii.,  p.  24. 


i4-  The  American  Republic 

and  Vice-President  might  come  into  power.  This  might 
lead  to  a  reversal  of  the  policies  voted  for  by  the  people. 
For  these  reasons  and  in  order  to  make  sure  that  not  even 
a  temporary  vacancy  should  exist  in  the  office  of  Presi- 
dent, the  Presidential  Succession  Bill  was  enacted  in  1886, 
providing  that  in  case  of  the  death  both  of  the  President 
and  Vice-President  the  Cabinet  officers  shall  succeed  to 
the  Presidency  in  the  following  order: 

1.  Secretary  of  State. 

2.  Secretary  of  the  Treasury. 

3.  Secretary  of  War. 

4.  Attorney-General. 

5.  Postmaster-General. 

6.  Secretary  of  the  Navy. 

7.  Secretary  of  the  Interior. 

8.  Secretary  of  Agriculture.1 

These  Cabinet  officers,  of  course,  before  they  can  be 
eligible  to  the  succession,  must  possess  all  the  constitu- 
tional qualifications.  When  the  President  or  Vice-Presi- 
dent again  become  qualified  the  Cabinet  officer  acting  is 
dispossessed. 

cusses  of  The  powers  and  duties  of  the  President  may 

presidential    ke  classified  as  follows : 

1.  Purely  I.  Purely  Executive. — These  include:  (a)  his 

Executive,  power  to  appoint  executive  officers;  (b)  his 
power  "to  take  care  that  all  laws  be  faithfully  executed." 
He  is  enabled  to  do  this  by  his  authority  to  commission 
all  the  officers  of  the  United  States,  to  appoint  to  execu- 
tive offices  and  to  fill  vacancies,  and  by  his  authority  as 
commander-in-chief  of  the  army  and  navy.  Executive 
departments  are  created  to  aid  him  and  to  represent  him 
in  thousands  of  acts  to  which  his  personal  attention  can- 
not be  called. 

This  duty  is  not  limited  merely  to  the  enforcement  of 
acts  of  Congress  and  of  treaties,  but  it  includes  "the  rights, 

1  This  order  is  the  order  of  the  creation  of  the  departments. 


The  Presidency  143 

duties,  and  obligations  growing  out  of  the  Constitution 
itself,  our  international  relations,  and  all  the  protection 
implied  by  the  nature  of  the  Government  under  the 
Constitution."  ' 

2.  Diplomatic. — These  include:  (a)  his  power  to  make 
treaties,  by  and  with  the  advice  and  consent  of  the 
Senate ;  (b)  the  power  to  appoint  ambassadors,  2.  Dipio- 
consuls,  and  other  commissioners  and  represen-  matic. 
tatives  of  the  nation  to  foreign  countries  provided  for  by 
law ;  (c)  the  power  to  receive  foreign  ambassadors  and 
representatives. 

3.  Advisory. — The  advisory  powers  of  the  President 
consist  in  his  power  and  duty :  (a)  to  recommend  meas- 
ures to  Congress ;  (b)  to  inform  Congress  on  3.  Advisory 
public  questions  and  on  the  state  of  the  Union.  Duties. 

His  annual  message  to  Congress  submitted  at  the 
opening  of  the  regular  session,  the  first  Monday  in  every 
December,  is  the  means  by  which  he  performs  these 
functions.  He  may  at  any  time  also  submit  a  special 
message  urging  on  Congress  a  particular  course  in  legis- 
lation. 

4.  Legislative. — The  President's  legislative  powers  are: 
(a)  the  power  to  convene  both  Houses  of  Congress  in 
extraordinary    session ;    {&)    the    veto    power. 

,*■.   .       .  .  .  4-  Legislative 

I  his  is  a  negative  power;  it  is  not  a  power  to  Functions 
legislate,   but    to    prevent    legislation;   (c)   the  ofthe 

&  '  ^  &  .  V  '  President. 

treaty-making   power,    since    treaties   are   the 
"supreme  law  of  the  land." 

5.  Military. — The  military  power  of  the  President  con- 
sists in  his  being  commander-in-chief  of  the  National  army 
and  navy,  and  of  the  militia  of  the  several  5  Miutary 
States  when  called  into  the  service  of  the  Power  of  the 
United  States.  His  war  power  makes  the 
President  a  commanding  figure.5     By  the  Act    of  Feb- 

1  In  re  Neagle  United  States  Reports,  135.     Boyd's  Cases,  p.  332. 
'See  p.  176  for  discussion  of  the  war  power  of  the  President. 


144  The  American  Republic 

ruary  28,  1795,  the  President  is  authorized  to  call  forth 
the  militia  of  the  States,  through  their  officers,  in  order 
to  suppress  insurrection,  or  to  repel  invasion,  and  the 
President  is  to  judge  of  the  emergency;  to  subject  the 
militia  to  the  President's  command  and  to  martial  law 
and  punishment.  These  conferred  powers  have  been 
sustained  by  the  Court.1  The  nation,  through  the 
President,  controls  the  State  militia  in  a  military  ex- 
igency, leaving  to  the  States  only  the  appointment  of 
the  officers  and  the  training  of  the  militia  according  to 
the  discipline  prescribed  by  Congress. 

6.  Judicial. — The  President  exercises  judicial  power,  or, 
6.  judicial  at  least,  power  over  the  Judiciary,  when  he 
rfthetIOnS  appoints  the  judges  of  the  Supreme  Court  and 
President.      all  the  inferior  federal  judicial  officers. 

In  this  classification,  the  powers  of  the  President  are 
not  intended  to  be  strictly  defined.  It  will  be  noticed 
that  some  of  the  presidential  powers  may  fall  in  two,  or 
more,  of  the  classes  named.  For  instance,  when  the 
President  makes  a  treaty  he  exercises  not  only  diplomatic 
power  but  legislative  power  also,  and  when  he  appoints  a 
judge  he  performs  a  purely  executive  act  with  a  judicial 
bearing. 

Of  these  various  powers  so  classified  a  few  need  to  be 
treated  at  some  length. 

By  his  power  to  call  Congress  into  extraordinary  session 
and  to  communicate  his  message,  the  President  may  take 
the  initiative  in  legislation.  It  would  be  legal 
president's  f°r  him  to  construct  and  present  regular  bills 
Legislative  to  Congress ;  but  he  does  not  do  this  formally 
through  his  executive  departments,  because 
our  usage  and  laws  do  not  provide  executive  organs  for 
"presenting,  explaining,  defending,  and  managing  gov- 
ernment bills  in  Congress."2     This  custom  might  have 

1  See  Houston  vs.  Moore,  5  Wheaton,  1  ;  Martina.  Mott,  i2\Vheaton,  19. 
5  Burgess,  Political  Science,  vol.  ii.,  p.  254. 


The  Presidency  145 

grown  up  under  our  Constitution,  but  it  has  not  hap- 
pened so.  If  Hamilton,  in  defending  his  financial  meas- 
ures before  Congress  in  1790,  had  appeared  in  person 
instead  of  sending  a  written  report,  it  is  conceivable  that 
the  precedent  might  have  been  followed,  and  the  Cabinet 
ministers  might  have  been  allowed  the  privilege  of  de- 
fending their  measures  on  the  floor  of  either  House.  As 
it  is,  they  rely  now,  for  the  promotion  of  their  measures, 
on  their  written  reports  and  public  recommendations,  on 
private  conferences  with  the  committees,  and  on  personal 
conferences  and  influence  with  the  party  and  committee 
leaders  of  the  houses.  Certain  Congressional  leaders  be- 
come, in  a  way,  the  spokesmen  for  the  executive  policy, 
and  through  them  the  President  exercises  great  influence 
in  legislation.  This  informal  private  contact  with  Con- 
gress is  often  more  effective  than  the  legal  and  more  public 
process  would  be.  Very  frequently  the  public  message  of 
the  President,  after  being  respectfully  read  and  printed,  is 
given  no  further  attention,  while  Congress  pursues  its  own 
course.  Especially  is  this  likely  to  be  the  case  if  the 
Congress  is  in  party  opposition  to  the  President.1 

The  Constitution  permits  the  President  to  veto  a  bill 
by  returning  it,  with  his  objections,  to  the  House  in 
which  it  originated.      If  the  bill   upon   recon-  The 

sideration  is  not  again  passed  by  a  two-thirds  Presidential 
vote  of  each  House  it  fails  to  become  a  law. 
If  it  is  so  passed  it  becomes  a  law  despite  the  veto.  A 
two-thirds  vote  of  each  House  means  two  thirds  of  a 
quorum,  not  two  thirds  of  all  the  members  elected  to  the 
body,  the  members  always  being  required  in  such  cases 
to  go  upon  record  by  a  Yea  and  Nay  vote  entered  upon 
the  Journals.  This  gives  the  President  large  legislative 
power;  for,  while  he  may  not  be  able  by  means  of  the 
veto  to  secure  the  passage  of  laws  which  he  likes,  he 
may  prevent  the  passage  of  those  which  he  dislikes.  If 
1  See  also  p.  302  in  the  chapter  on  the  House  of  Representatives. 


1 46  The  American  Republic 

any  bill  be  not  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  it  becomes  a  law  just  as  if  he  had 
signed  it,  unless  Congress  by  adjournment  prevents  its 
return,  in  which  case  it  shall  not  be  a  law.  This  gives 
the  President  a  chance  to  defeat  a  bill  by  what  is  called 
The  "Pocket  a  "pocket  veto."  The  "pocket  veto"  can 
veto."  operate   only  in   the  case  of  bills  sent  to  the 

President  within  ten  days  of  Congressional  adjournment. 
If  he  retain  such  a  bill  (figuratively,  in  his  pocket), 
neither  giving  it  his  sanction  by  signing  it,  nor  withhold- 
ing his  sanction  in  returning  it  to  Congress,  the  bill  is 
defeated.  The  President  is  not  bound  to  give  reasons  for 
defeating  a  bill  by  a  pocket  veto  which  he  has  not  had  at 
least  ten  days  to  consider.  In  a  regular  veto  he  is  bound 
to  give  such  reasons.  The  President  employs  the  ' '  pocket 
veto  "  rather  than  the  direct  veto,  either  because  he  may 
not  have  time  to  prepare  his  veto  message  giving  his 
public  reasons  against  the  measure,  or  because  he  may 
not  wish  to  give  Congress  a  chance  to  pass  the  bill  over 
his  head,  or  does  not  wish  to  allow  his  reasons  against  the 
bill  to  go  upon  record,  together  with  the  speeches  and 
criticisms  against  these  reasons ;  that  is,  he  may  not  wish 
to  join  issue  before  the  public  with  the  Congressional  ad- 
vocates of  the  bill, — which  might  furnish  campaign  ma- 
terial for  his  opponents.  The  latter  reason  would  operate, 
evidently,  only  when  the  President  feels  that  his  side  of 
the  case  is  weak  before  the  country.  The  only  way  of 
offering  public  criticism  of  a  President  for  a  pocket  veto 
is  through  the  public  press.  In  1864,  when  President 
Lincoln  defeated  by  a  pocket  veto  the  Reconstruction 
measure  known  as  the  "Wade-Davis  plan,"  Senator 
Wade  of  Ohio,  and  Representative  Davis  of  Maryland, 
the  authors  of  the  bill,  united  in  a  public  criticism  of  the 
President  in  the  public  prints.  This  called  out  from 
President    Lincoln   a  defence   of   his   action.     A   pocket 


The  Presidency  ^47 

veto  does  not  always  signify,  by  any  means,  that  the 
veto  is  without  good  public  reasons. 

In  each  of  the  thirteen  Colonies  the  governor  could 
veto  any  measure  of  the  legislature;  and  in  each  of  the 
Colonies,  except  proprietary  Maryland  and  the  The  Veto 
charter  Colonies  of    Rhode   Island    and  Con-  inthe 

i   mi   r  u  Colonies. 

necticut,  the  king  could  prevent  a  bill  from  be- 
coming a  law,  even  after  it  had  been  approved  by  the 
governor ;  and  in  all  cases  where  the  veto  was  exercised 
it  was  absolute.1  The  king  of  his  own  right,  or  through 
the  royal  government,  had  used  the  veto  so  repeatedly 
and  so  much  to  the  vexation  of  the  colonists,  "refusing 
his  assent  to  laws  the  most  wholesome  and  necessary  for 
the  public  good,  forbidding  his  governors  to  pass  laws  of 
immediate  and  pressing  importance,"2  that  when  the 
Colonies  came  to  make  State  constitutions  only  one 
State,  Massachusetts,  allowed  the  veto  power  to  its  gov- 
ernor.3 In  later  State  constitutions,  the  governor's  veto 
has  been  revived.  The  New  York  Constitution  of  1777 
allowed  the  veto  to  a  council,  consisting  of  the  governor 
and  the  Supreme  Court  judges.  The  royal  TheRoyal 
veto  was  more  direct  and  frequent  in  the  Crown     veto  in  the 

1  1      .     -i  Colonies. 

Colonies  than  in  the  others;  but  its  use  as 
against  colonial  legislation  made  the  veto  a  real  power  to 
the  colonists,  while  George  III.,  in  his  attempt  to  revive 
the  royal  power  in  England,  specifically  refused  to  recog- 
nize the  lapse  of  the  royal  veto  in  America.  Thus  a  real 
veto  power  was  "a  fully  recognized  legal  right  down  to 
the  outbreak  of  the  American  Revolution,  and  naturally 
passed  into  the  constitutional  law  of  the  States  and  the 
American  nation.4     Under  the  Confederation  there  was, 

1  Mason's  Veto  Power,  p.  17. 

2  Declaration  of  Independence. 

3  Alex.    Johnston    Lalor's    Cyclopedia   of   U.    S.    History   and  Political 
Science,  art.  on  "Veto,"  Hildreth,  vol.  iii.,  p.  377- 

4  Stevens,  Sources  of  the  Constitution,  p.  158.     See  also  pp.  27,  156,  157 
of  this  valuable  work. 


148  The  American  Republic 

of  course,  no  executive  veto  because  there  was  no  Execu- 
tive. In  the  Constitutional  Convention  of  1787,  the 
The  Virginia  Plan  proposed  to    give    the    veto    to 

judiciary        trie  Executive  "and  a  convenient   number  of 

and  the  Veto.  .  .....  ,,  .  ...  , 

proposals  the  national  judiciary,  unless  overridden  by 
in  the  con-     a  preponderant  number  of  each  branch.       The 

stitutional  r      *  .    . 

convention,  Judiciary  was  afterwards  cut  off  from  partici- 
I787-  pating  in  the  veto   from   the   feeling  that  the 

judges  should  not  pass  on  the  law  in  the  making, — 
should  not  be  a  part  of  the  lawmaking  body, — for  when 
they  came  to  judge  the  laws  they  would  have  a  bias  in 
their  favor.  It  was  desired  also  to  keep  the  judges  apart 
from  executive  influence.  Hamilton  and  Wilson  urged 
an  absolute  veto,  in  the  belief  that  though  it  would  be 
seldom  or  never  used,  it  would  serve  to  prevent  rash 
legislation,  but  this  was  rejected  by  the  States  unani- 
mously. Some  thought  the  President  should  have  no 
negative  at  all,  that  he  would  be  no  wiser  than  the  Sena- 
tors, while  Dr.  Franklin  proposed  that  the  Executive  be 
allowed  to  suspend  a  legislative  act  for  a  while,  but  not 
to  defeat  it  entirely. 

The  veto  power  gives  the  American  President  much 
greater  weight  in  legislation  than  the  English  king  can 
The  Royal  exercise.  In  England,  the  royal  veto  power  is 
veto  To-Day.  obsolete ;  the  veto  has  not  been  exercised  there 
since  1707,1  now  nearly  two  hundred  years  ago,  though 
George  III.  claimed,  but  did  not  exercise,  the  right.  It 
has  been  said  the  king  would  be  bound  to  sign  his  own 
death-warrant  if  such  a  measure  were  sent  up  to  him. 
In  the  theory  of  the  English  Constitution  the  king  is  a 
part  of  Parliament.  "The  King  in  Parliament"  is  the 
historic  expression  to  indicate  the  whole  legislature  of 
the  realm.  As  a  part  of  Parliament  the  king  is  presumed 
by  one  of  the  fictions  of  the  Constitution  to  have  given 
his  consent  to  whatever  passes  that  body,  although  the 
1  When  Queen  Anne  vetoed  the  Scotch  Militia  bill. 


The  Presidency  149 

king  never  appears  in  Parliament  except  by  his  ministers, 
unless  it  be  to  open  or  dissolve  that  body  in  a  speech  from 
the  throne.  The  real  Executive  in  England — the  Minis- 
try— sit  in  Parliament  and  urge  and  secure  the  passage 
of  measures.  Our  President  cannot  do  this.  The  veto 
which  he  exercises  implies  a  power  outside  of  the  legis- 
lature. The  people  have  bestowed  this  power  upon  the 
President  as  an  individual  agent  for  the  purpose  of  check- 
ing hasty  and  ill-advised  legislation,  to  protect  the  nation 
against  abuses  of  legislative  power. 

The  veto  power  was  but  little  used  by  the  early  Presi- 
dents. Washington  vetoed  but  two  bills ;  his  successors 
down  to  1830  vetoed  but  seven.  Jackson  Veto:  How 
marked  an  epoch  in  the  use  of  the  veto.  The  used  by  the 
earlier  view  was  that  the  veto  power  was  al- 
lowed by  the  Convention  of  1787  for  the  purpose  of  pro- 
tecting the  Constitution  and  the  Executive  department 
from  legislative  encroachment.  The  President  should 
see  that  no  measure  is  passed  that  clearly  violates  the 
Constitution,  or  that  would  interfere  with  the  indepen- 
dence of  his  office.  Within  these  limits  Congress  was 
expected  to  determine  the  public  policy  to  be  marked 
out  by  legislation.  The  President  was  not  to  interfere 
with  the  making  of  the  laws  except  for  clearly  defined 
constitutional  reasons.  The  early  Presidents  up  to 
Jackson's  time,  as  we  have  seen,  acted  upon  this  theory 
of  the  veto.  But  Jackson  used  his  veto  to  defeat,  not 
merely  measures  that  contravened  the  Constitution,  but 
also  to  defeat  measures  that  contravened  his  personal  and 
party  policy.  If  a  measure  appeared  to  him  unwise  and 
inexpedient  he  thought  he  should  use  the  veto  power  to 
defeat  it.  The  President  was  to  share  with  Congress  the 
responsibility  for  legislation ;  the  presumption  in  favor  of 
a  measure  merely  because  Congress  had  passed  it  was 
not  to  weigh  decisively  with  the  President.  This  seemed 
to  Clay  and  Webster  and  other  opponents  of  Jackson  a 


150  The  American  Republic 

dangerous  assumption  of  executive  power,  in  opposition 
to  the  spirit  of  the  Constitution.  Since  Jackson's  time, 
however,  the  veto  has  been  used  upon  the  theory  which 
he  exemplified, — to  defeat  any  measure  which  the  Presi- 
dent may  deem  pernicious  or  impolitic.  President  Cleve- 
land vetoed  over  three  hundred  private  pension  bills,  and 
President  Johnson,  during  the  struggles  on  Reconstruc- 
tion, used  the  veto  constantly  against  important  measures 
of  Congress  in  their  plan  of  Reconstruction.  The  two- 
thirds  majority,  however,  against  Johnson  were  able  to 
pass  all  desired  measures  over  his  veto;  and  the  Presi- 
dency, raised  to  such  heights  of  power  under  Jackson  and 
Lincoln,  sank  under  Johnson  to  the  lowest  degree  of  po- 
litical importance, — so  much  so  that  Johnson's  period 
has  been  spoken  of  as  marking  the  "degradation  of  the 
Presidency." 

Thus  the  veto  in  America,  against  a  mere  majority  in 
Congress,  has  come  to  be  a  real  power,  while  in  England 
„,.    „  .      A  it  has  come  to  be  only  a  nominal  one,  illustrat- 

The  Veto  and  J 

written  ing,  as  Mr.  Bryce  expresses  it,  "the  tendency 
constitutions.  of  unwritten  or  flexible  constitutions  to  depart 
from,  and  of  written  or  rigid  constitutions  to  cleave  to  the 
letter  of  the  law."  That  is,  while  in  both  countries  the 
theory  of  the  veto  is  the  same, — "whereas  it  is  now 
the  undoubted  duty  of  an  English  king  to  assent  to  every 
bill  passed  by  both  Houses  of  Parliament,  however  strongly 
he  may  personally  disapprove  its  provisions,  it  is  no  less 
the  undoubted  duty  of  an  American  President  to  exercise 
his  independent  judgment  on  every  bill,  not  sheltering 
himself  under  the  representatives  of  the  people,  or  fore- 
going his  own  opinion  at  their  bidding.1  The  decline  of 
the  veto  power  in  England,  is  due,  first,  to  the  decline 
in  the  power  of  the  sovereign,  and,  second,  to  the  fact 
that,  generally,  since  the  Revolution  of  1688,  the  Crown 
has  acted  only  on  the  advice   of    responsible  ministers. 

1  Bryce's  American  Commonwealth,  vol.  i.,  p.  60. 


The  Presidency  15 r 

In  America  the  people  vest  more  power  in  one  man 
than  in  England,  where  the  government  is  more  that  of 
a  representative  body.  Or,  we  may  say,  that  Decline  of 
in  America  the  people  appoint  a  popular  repre-     the  veto  in 

_         .  ,  ...  England. 

sentative,  the  President,  to  restrain  their  popu- 
lar representatives  in  Congress ;  from  which  it  appears  that 
the  people  are  not  quite  willing  to  trust  themselves  to 
the  government  of  their  own  representatives  in  a  single 
body.  This  leads  to  conflicts  and  deadlocks  between  the 
two  branches  of  the  Government  and  to  consequent  gov- 
ernmental inertia  and  inability  to  act,  as  the  people  have 
no  immediate  and  direct  means  of  deciding  in  a  dispute 
between  the  two  branches  of  their  Government. 

It  would  seem  that  under  representative  government  in 
such  cases  power  should  be  lodged  in  the  representative 
body.  For  this  reason  the  question  has  been  PopuIar 
repeatedly  raised  whether  the  veto  power  is  opposition 
desirable;  whether  it  can  be  reconciled  with 
popular  government ;  whether  it  would  not  be  well  to 
limit,  or  abolish  it.  Jackson's  unprecedented  use  of  the 
veto,  followed  by  its  similar  use  by  Tyler  in  the  defeat 
of  the  bank  charters  and  other  Whig  measures,  gave  rise 
to  party,  if  not  popular,  opposition  to  the  veto,  and 
from  1832  to  1843  frequent  propositions  were  The 

made  to  limit  this  power  by  allowing  a  majority  whig 

of  all  the  members  of  each  House  instead  of       ppos 
two  thirds   of   a   quorum,    to   repass   a  vetoed    measure. 
One  of  the  most  notable  propositions  in  this  direction  was 
that  of  Henry  Clay,  January  24,  1842,  who  pro-  ciayon 

posed  a  constitutional  amendment  providing  the  veto, 
that  the  veto  of  the  President  might  be  overruled  by  a 
second  majority  vote  of  the  two  Houses.  In  behalf  of 
such  a  proposition  as  Clay's,  it  may  be  noticed  that  to- 
day, with  a  Senate  of  ninety  members,  and  a  House  of,  ap- 
proximately, four  hundred  (386)  members,  it  might  require 
forty-six  votes  in  the  Senate  and  two  hundred  and  one 


152  The  American  Republic 

in  the  House  to  pass  a  measure.  If  the  President  then 
vetoes  it,  it  will  require  fourteen  more  Senators  and 
sixty-five  more  Representatives  to  pass  the  measure 
against  him.  Thus  the  veto  in  the  hands  of  the  Presi- 
dent makes  him  equal,  in  his  power  over  legislation,  to 
sixty-five  Representatives  and  fourteen  Senators,  or  to 
seventy-nine  representatives  of  the  people  and  the  States. 
This  considers  merely  his  numerical  weight  and  disregards 
entirely  his  influence  from  appointments  and  from  the 
prestige  and  eclat  of  his  office.  Mr.  Clay  saw  that  the 
veto,  as  Jackson  and  Tyler  wielded  it,  had  become  a 
greater  power  than  the  framers  of  the  Constitution  had 
ever  intended ;  that,  whereas  it  had  been  given  to  protect 
the  Constitution  and  to  defend  the  Executive  from  legis- 
lative encroachment,  it  was  now  being  used  to  defeat 
party  policies  approved  by  the  people;  and  that,  owing 
to  the  extreme  difficulty  of  mustering  two-thirds  votes  in 
both  Houses  against  a  President,  the  veto  had  practically 
become  absolute.  Clay  warned  the  country  that,  if  the 
veto  power  was  not  arrested,  or  limited,  the  time  would 
come  when  the  whole  legislation  of  the  country  would 
be  prepared  at  the  White  House  and  would  come  down 
to  Congress  in  the  shape  of  bills  to  be  registered.  Then 
"the  question  that  Congress  would  have  to  decide  would 
be,  not  what  is  the  proper  remedy  for  the  existing  griev- 
ances of  the  country,  not  what  will  restore  the  national 
prospects ;  no,  but  what  measures  will  be  sanctioned  by 
the  chief  magistrate.  The  question  was  the  old  one, 
whether  we  should  have  in  this  country  a  power  tyranni- 
cal, despotic,  absolute,  the  exercise  of  which  must,  sooner 
or  later,  produce  an  absolute  despotism ;  or  a  free  repre- 
sentative government  with  powers  clearly  defined  and 
carefully  separated."  '     One  of  the  duties  which  the  Whig 

1  Cited  in  H.  C.  Lockwood's  The  Abolition  of  the  Presidency,  p.  90.  In 
this  volume  Mr.  Lockwood  advocates  the  reduction  of  the  presidential 
office  to  purely  ministerial  functions  and  the  government  of  the  country  by 


The  Presidency  153 

party  felt  itself  called  upon  to  perform,  "conspicuously 
and  prominently  above  all  others,"  was  "a  reduction  of 
the  Executive  power  by  a  further  limitation  of  the  veto 
so  as  to  secure  obedience  to  the  public  will  as  expressed 
by  the  immediate  representatives  of  the  people  and  the 
States,  with  no  other  control  than  that  which  is  indis- 
pensable to  avert  hasty  or  unconstitutional  legislation."  ' 
The  Whigs  proposed  to  place  upon  their  party  banner, 
"The  will  of  the  people  uncontrolled  by  the  will  of  one 
man." 

But  these  proposals  to  reduce  the  veto  came  to  noth- 
ing. After  the  passing  of  the  party  issues  of  the  time 
and  after  the  control  of  the  presidential  office  through 
popular  party  machinery,  all  agitation  in  this  direction 
ceased. 

On  the  other  hand,  proposals  have  been  made  for  the 
extension  of  the  Executive  veto  and  for  more  frequent 
application  of  its  use.  It  has  been  proposed  to  Pro  osals 
require  two  thirds  of  all  the  members  elect  to  to  Limit 
each  House  instead  of  two  thirds  of  a  quorum, 
to  avail  against  the  President ;  also,  to  allow  the  Presi- 
dent to  veto  single  items  in  an  Appropriation  Bill  without 
having  to  defeat  the  whole  bill  containing  appropriations 
necessary  for  carrying  on  the  Government.*  The  latter 
demand  has  arisen  from  a  desire  to  enable  the  President 
to  defeat  grants  for  purely  local  purposes  inserted  by  Con- 
gressional jobbery  and  log-rolling.  This  would  materially 
increase  the  power  of  the  veto  and  "practically  destroy 
the  only  power  which  Congress  has  over  the  President 
apart    from    impeachment.3     But,    as    a    remedy   against 

a  representative  assembly  of  the  two  Houses  of  Congress.  The  abolition  of 
the  veto  would  be  a  necessary  step  to  accomplish  this.  See  also  Clay's 
Works,  edited  by  Colton,  vol.  vi.,  p.  318. 

1  Address  to  the  People  by  Whig  Members  of  Congress,  Niles's  Register, 
vol.  Ixi.,  p.  36,  Sept.  3,  1 841.  See  also  Benton's  Thirty  Years'  View, 
vol.  ii. 

5  See  the  topic,  "  Riders."  3  Mason's  Veto  Power,  p.  138. 


154  The  American  Republic 

log-rolling  jobs,  and  raids  on  the  treasury,  it  might  prove 
effectual. 

The  signature  of  the  President  is  not  essential  to  the 
passage  of  a  constitutional  amendment.     In  1794,  objec- 
tion was  made  that  the  Eleventh  Amendment 
anda  Con-      nad  not  been  constitutionally  adopted,  because 
stitutionai       it  had  not  been  presented  to  the  President  for 

Amendment.  ,  _T    .,  ,       .      1   .      ,  .  ... 

approval.  JN  either  had  this  been  done  in  the 
case  of  the  first  ten  amendments.  It  was  argued,  in  de- 
fence of  adding  amendments  without  the  assent  of  the 
President,  that  an  amendment  is  a  substantive  act,  an 
act  in  Constitution-making,  and  it  does  not  come  within 
the  provisions  of  the  Constitution  investing  the  Presi- 
dent with  a  negative.  The  Supreme  Court  unanimously 
sustained  this  view  and  declared  the  amendment  a  part 
of  the  Constitution.1  However,  the  proposed  Douglas 
amendment  guaranteeing  slavery  against  congressional 
interference  was  sent  to  President  Buchanan,  who  ap- 
proved it,  March  2,  1 861  ;  and  the  Thirteenth  Amend- 
ment was  presented  to  President  Lincoln,  who  signed  it, 
and  notified  Congress  to  that  effect,  whereupon  the  Sen- 
ate immediately  passed  a  resolution  declaring  that  the 
President's  signature  was  not  necessary.* 

While  the  President's  signature  is  essential  to  make 
effectual  a  Joint  Resolution  it  is  not  necessary  to  the 
.  .  operation  of  a  Concurrent  Resolution.     A  Con- 

Joint  and  r 

Concurrent  current  Resolution  has  not  the  effect  of  law,  but 
Resolutions.  jg  mereiy  an  expression  and  an  announcement 
to  the  country  of  the  sense  of  Congress,  a  statement  of 
the  opinion  of  Congress  upon  a  public  question  or  of  the 
policy  that  body  would  like  to  pursue.  It  is  used  instead 
of  a  Joint  Resolution  or  a  bill,  because  of  the  known 
hostility  of  the  President ;  or  on  matters  on  which  Con- 

1  See  Hollingsworth  vs.  Virginia ;  Hinsdale's  American  Government, 
p.  192. 

2  Mason's  Veto  Power,  pp.  117-118. 


The  Presidency  155 

gress  wishes  to  establish  a  precedent  by  the  public  record, 
or,  in  a  measure,  to  pledge  the  public  conduct.  The 
famous  Mathews  Concurrent  Resolution  of  1878,  by 
which  Congress  sought  to  put  the  country  on  record  in 
favor  of  the  restoration  and  continued  use  of  the  silver 
dollar,  is  a  case  in  point.  In  February,  1865,  Congress 
sent  to  President  Lincoln  a  Joint  Resolution  declaring  that 
certain  States  were  not  entitled  to  Presidential  electors, 
because  they  were  then  in  rebellion  against  the  Govern- 
ment. President  Lincoln  signed  the  resolution,  but  sent 
a  message  to  Congress  declaring  this  unnecessary,  as  the 
two  Houses  had  exclusive  authority  under  the  Constitu- 
tion to  count  the  electoral  votes.  This  was  the  business 
of  Congress.  In  March,  1866,  in  general  harmony  with 
this  view,  the  two  Houses  passed  a  Concurrent  Resolution 
declaring  that  no  Senator  or  Representative  should  be 
admitted  into  either  branch  of  Congress  from  any  of  the 
eleven  States  then  considered  in  rebellion  until  the  con- 
sent of  Congress  was  obtained.  President  Johnson  was 
not  asked  to  approve  this  resolution.1 

The  form  of  a  Joint  Resolution,  adopted  in  Congress 
February  25,  1871,  was  instituted  for  the  purpose  of  a 
temporary  enactment  as  distinguished  from  a  permanent 
statute.  There  is  no  difference  between  a  bill  and  a  joint 
resolution  so  far  as  the  purpose  is  concerned.  It  differs 
in  phraseology  from  the  enacting  clause  of  a  bill  and  this 
is  the  only  difference  that  can  be  noted.  It  has  to  go 
through  all  the  processes  and  stages  of  legislation  that  a 
bill  does  and  then  has  the  same  force  of  law.  It  must 
be  read  as  many  times  and  must  have  the  signature  of  the 
President.  There  is  no  reason  for  its  existence,  as  all 
bills  and  legislation  should  have  the  same  enacting  clause.2 

1  Hinsdale's  American  Government,  p.  192. 

*  See  remarks  of  Senator  Hamlin  of  Maine,  and  Senator  Sumner  of 
Massachusetts,  in  Senate,  Jan.  27,  1871.  See  Blaine's  Twenty  Years  of 
Congress  ;  McKee's  Manual  of  Congressional  Practice,  pp.  124,  126. 


156  The  American  Republic 

President  Grant  on  August  15,  1876,  vetoed  a  bill  for 
the  sale  of  certain  Indian  lands.  He  sent  his  veto  mes- 
,_,     »u  saee  to  the  Senate,  but  before  that  body  had 

Has  the  o  J 

President  a  acted  upon  it  a  message  was  received  from  the 
R^caii^  President,  saying  that  his  veto  was  premature, 
Vet0  ?  and  he  requested  that  the  bill  be  returned  to 

him  that  he  might  sign  it.  A  discussion  arose  as  to 
whether  the  President  could  recall  a  veto  message.  It 
was  generally  held  that  the  President  had  no  such  power, 
and  the  only  effect  of  the  second  message  was  to  induce  the 
passage  of  the  bill  over  the  veto.1 

Though  the  Senate  is  co-ordinate  in  power  with  the 
President  in  treaty-making,  and  though  certain  topics  re- 
lating to  this  theme  pertain  to  the  Senate  and 

The  Treaty-  °  r 

Making  House,   it  seems  best  to  explain  here  the  van- 

Power-  ous  factors  and  functions  of  the  treaty-making 

power  of  our  Government. 

The  Constitution  says:  The  President  "shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur. "  a  ' '  Two-thirds  of  the  Senators  present" 
may  be  a  minority  of  the  whole  Senate.  This  provision 
does  not  mean,  as  practice  has  interpreted  it  in  the  case 
of  appointments,  that  the  Senate  can  advise  only  by  say- 
ing Yes  or  No  to  a  treaty.  While  the  practice  has  usually 
been  for  the  Presidents  to  ask  for  the  "advice"  of  the 
Senate  only  when  they  ask  its  "consent  to  a  completed 
treaty,  yet  it  is  perfectly  proper  and  constitutional  for  a 
President  to  ask  the  advice  of  the  Senate  before 

Scope  of 

the  senate's  opening  or  completing  negotiations,  as  Wash- 
Advice.  ington  frequently  did,  and  as  Polk  did  in  the 

Oregon  Treaty  of  1846.  The  Senate  may  advise  by 
proposing  amendments,  or  it  may  request  the  President 
to  open  negotiations  for  certain  treaty  purposes,  or  ad- 
vise him  not  to  begin  negotiations  of  a  certain  kind, 
1  Mason,  p.  118.  3  Art.  II.,  Sec.  2,  CI.  2. 


The  Presidency  157 

though  the  President  would  not  be  under  obligations  to 
act  on  such  requests.  The  initiative  in  making  a  treaty 
is  with  the  President,  because  he  has  power  to  appoint 
and  receive  ambassadors,  and  he  may  complete  negotia- 
tions with  a  foreign  power — always  through  his  Secretary 
of  State — before  communicating  any  of  the  proceedings 
to  the  Senate.  He  is  not  bound  to  take  the  Senate  into 
his  confidence  in  the  process  of  his  negotiations.  But 
since  the  Senate  can  block  his  negotiations  after  they  are 
communicated,  or  defeat  his  treaty  after  it  is  made,  the 
President  will  naturally  desire  the  favor  and  co- 
operation of  the  senatorial  majority,  and  espe-  tive  seeks 
daily  of  the  Committee  on  Foreign  Relations.  senatorial 
In  1870,  Senator  Sumner,  Chairman  of  the 
Committee  on  Foreign  Affairs  in  the  Senate,  opposed  and 
succeeded  in  defeating  President  Grant's  treaty  for  the 
annexation  of  San  Domingo.  In  1898,  President  McKin- 
ley  sent  Senator  Davis  of  Minnesota,  Chairman  of  the 
Senate  Committee  on  Foreign  Affairs,  as  one  of  our 
Commissioners  to  Paris  to  negotiate  the  Peace  Treaty 
with  Spain.  Naturally,  Senator  Davis  would  defend  the 
completed  treaty  on  the  floor  of  the  Senate,  and  his  Re- 
publican colleagues,  who  placed  him  in  his  responsible 
position,  would  be  inclined  to  sustain  him.  In  1890, 
President  Harrison  did  not  take  decisive  steps  during  our 
strained  relations  with  Chile  until  he  had  sought  the  judg- 
ment and  co-operation  of  the  Chairmen  of  the  Foreign 
Affairs  Committees  in  both  Senate  and  House.  Mr. 
Blount  of  Georgia,  a  Democrat,  was  Chairman  of  the 
House  Committee  on  Foreign  Affairs,  but  he  and  Presi- 
dent Harrison,  a  Republican,  were  acting  in  complete 
harmony  and  with  a  mutual  understanding. 

The  treaty-making  power  thus  conferred  upon  the 
President  makes  him  a  diplomatic  officer.  He  directs 
our  diplomacy.  Through  his  Secretary  of  State  he  rep- 
resents the  nation  in  its  relations  with    foreign   powers 


158  The  American  Republic 

and  controls  our  foreign  policy.  But,  as  we  have  indi- 
cated, the  President  has  not  a  "free  hand  "  to  do  as  he 
will  in  our  foreign  relations.  He  cannot  declare  war,  of 
course,  for  that  power  belongs  to  Congress,  but  he  may 
by  his  negotiations  or  by  his  executive  orders  so  entangle 
us  in  a  foreign  complication  that  it  may  be  very  difficult 
if  not  impossible  forCongress  to  refuse  adeclaration  of  war. 
In  1846,  preceding  the  Mexican  War,  President  Polk 
ordered  our  troops  into  disputed  territory,  where  they 
were  attacked  by  the  Mexicans ;  Congress  then 
President  merely  declared  that  "war  existed  by  the  act 
may  Bring      0f  the  Republic  of  Mexico."     A  President  also 

on  a  War. 

may  prolong  a  war  by  refusing  to  negotiate,  or 
he  may  speedily  end  one  by  protocol  if  he  be  so  inclined. 
But  in  either  policy  the  President  finds  a  check  against 
him  in  Congress.  If  he  negotiates  too  soon  or  adversely 
to  the  national  interest  the  Senate  may  refuse  to  confirm 
the  treaty ;  and  if  he  be  disposed  to  prolong  the  war  un- 
necessarily and  against  the  national  desire,  Congress  may 
refuse  money  for  the  conduct  of  the  war.  The  President, 
therefore,  in  any  international  struggle  or  negotiation 
of  moment  will  always  seek  the  co-operation  of  the  con- 
gressional branch  of  the  Government. 

Although  the  House  may  not  participate  in  the  con- 
duct of  foreign  affairs,  its  power  of  withholding  appro- 
The  Need  of  priations  would  be  effective  in  embarrassing,  or 
unity  and  even  in  defeating,  the  Administration,  if  the 
ForeTg0^1  party  majority  there  chose  to  antagonize  the 
Relations.  President.  It  is  by  all  means  desirable  that 
our  Government  in  a  controversy  with  a  foreign  power 
should  act  unitedly.  If  the  different  departments  of  the 
Government  pull  apart  and  come  to  loggerheads  in  a 
foreign  contention,  it  is  not  probable  the  Government 
will  be  able  to  carry  its  point.  It  is  for  this  reason  that, 
in  any  grave  crisis,  the  President  will  not  be  apt  to  take 
any  decisive  step  until  he  knows  that  he  will  be  sustained 


The  Presidency  159 

by  the  agreement  and  concurrence  of  those  who  are  au- 
thorized to  speak  for  the  two  Houses. 

It  has  been  said  that  the  House  cannot  participate  in 
the  conduct  of  foreign  affairs.  That  the  House  is  not  to 
be  considered  as  a  part  of  the  treaty-making  ToWhat 
orean  of  the  Government  was  settled  by  the    Extent  may 

fa  .  the  House  of 

precedent   established  in  the  discussions  over    Representa- 
Tav's  Treaty, — one  of  the  most  famous  treaties       tives  Par" 

J    J  J  '  _  ticipate  in 

in  our  history.     The  points  then  brought  into      the  Treaty 
discussion  are  of  great  importance  in  the  con-  Power? 

sideration  of  this  subject.  Jay's  Treaty  was  negotiated  in 
November,  1794,  but  it  was  not  received  at  Washington 
until  after  the  adjournment  of  Congress  in  March,  1795. 
Washington  submitted  the  treaty  to  the  Senate  in  a 
special  session  of  that  body  summoned  for  that  purpose, 
and  the  treaty  was  ratified,  after  a  two-weeks  secret  de- 
bate,.on  June  24,  1795.  The  vote  stood  twenty  to  ten, 
exactly  the  two  thirds  necessary  for  ratification.  When 
the  treaty  became  public  it  excited  the  fiercest  popular 
opposition.  This  opposition  was  represented  in  the  lower 
House  of  Congress,  where  the  Jeffersonian  Republicans, 
who  were  hostile  to  the  treaty,  had  a  majority,  and  a 
struggle  there  over  the  treaty  was  inevitable.  Discussion  on 
On  March  2,  1796,  President  Washington  pro-  Jay's  Treaty, 
claimed  the  treaty  the  law  of  the  land  and  communicated 
it  to  the  House  in  order  that  the  necessary  appropriation 
might  be  made  to  carry  it  into  effect.  On  the  day  of 
this  communication  from  the  President,  Edward  Living- 
ston, of  New  York,  a  Republican  leader,  offered  a  reso- 
lution in  the  House  calling  on  the  President  for  Jay's 
instructions  and  other  papers  relating  to  the  treaty.  A 
notable  debate  occurred  on  this  resolution,  and  Albert 
Gallatin,  the  ablest  Republican  leader  of  the  Gallatin  on 
House,  made  one  of  his  two  great  speeches  the  Treaty 
which  Jefferson  pronounced  the  best  commen- 
tary ever  published  on  the  treaty-making  clauses  of  the 


160  The  American  Republic 

Constitution.  Gallatin  defended  the  right  of  the  House 
to  use  its  discretion  in  providing  for  the  carrying  out  of 
this  treaty, — that  the  House  could  review  the  merits  and 
desirability  of  the  treaty,  and  was  not  bound  to  carry  it 
out  merely  because  it  had  been  agreed  to  by  the  Presi- 
dent and  the  Senate.  The  House  was  competent  to  look 
into  the  papers,  as  it  had  a  right  to  do,  and  see  the  public 
reasons  for  the  treaty  and  the  methods  of  its  negotiation. 

"  Gallatin  did  not  claim  on  the  part  of  the  House  an  abso- 
lute right  of  review  in  every  instance  of  negotiation,  but  that 
whenever  the  President  and  Senate  include  in  a  treaty  matters 
confided  by  the  Constitution  to  the  whole  Congress  of  the 
United  States,  an  act  of  legislation  will  be  necessary  to  con- 
firm these  articles;  this  act  the  House,  as  a  co-ordinate  branch 
of  Congress,  is  perfectly  competent  to  pass  or  reject  at  discre- 
tion, and  that  thus  the  absorption  of  legislative  powers  by  the 
treaty-making  organ  will  be  obviated."  ' 

The  Constitution,  and  treaties  made  in  accordance  with 
it,  are  the  supreme  law  of  the  land.  In  saying  this,  the 
Constitution  did  not  intend  to  place  treaty  law  above 
congressional  law,  or  to  compare  these  different  kinds  of 
national  law  with  one  another;  but  the  intention  was  to 
declare  whether  "the  constitutional  laws  and  treaties  of 
the  General  Government,  or  the  laws  and  constitutions 
of  the  States  are  supreme,  in  case  of  clashing  powers."  2 

It  was  understood  that  the  Jay  Treaty  contained  pro- 
visions touching  the  regulation  of  commerce  known  to  be 
in  opposition  to  the  will  of  the  House.  These  provisions 
were  inserted  in  the  treaty  on  the  recommendation  of 
Hamilton  with  the  express  design  of  making  laws  by  the 
more  convenient  combination  of  President  and  Senate 
instead  of  President  and  the  whole  Congress.  Gallatin 
and  the  Republicans  held  that  they  had  a  right  to  pre- 

1  Schouler,  History  of  the  United  States,  vol.  i.,  p.  309. 
s  Gallatin. 


The  Presidency  161 

vent  this,  and  their  position,  especially  since  there  was 
no  precedent  in  such  a  case,  cannot  be  said  to  have  been 
unreasonable.  The  House  passed  the  Livingston  resolu- 
tion by  a  large  majority,  calling  upon  the  President  for 
the  papers.  But  Washington  refused  to  submit  the 
papers  to  the  House  because,  as  a  matter  of  precedent, 
he  did  not  wish  to  acknowledge  that  the  assent  of  the 
House  was  necessary  to  the  validity  and  execution  of  a 
treaty.  The  House,  after  discussing  the  President's 
reply,  receded  from  its  position  in  this  particular  case 
and  passed  the  laws  and  appropriation  necessary  for 
carrying  the  treaty  into  effect.  It,  however,  resolved 
that  while  it  claimed  no  agency  in  the  making  of  treaties, 
that  power  being  exclusively  with  the  President  and 
Senate,  yet,  as  a  part  of  Congress,  it  claimed  the  right 
of  deliberating  upon  the  expediency  or  inexpediency  of 
carrying  into  effect  a  treaty  which  must  depend  for  its 
execution  on  laws  to  be  passed  by  Congress,  or 

A  t  Claims  of 

that  deals  with  subjects,  like  the  regulation  of      the  He 


louse 


commerce,  which  had  been  given  by  the  Con-       inJr,eaty" 

°  J  Making. 

stitution  to  the  control  of  Congress ;  and  that 
the  House  might  act  in  such  cases  as,  in  its  judgment, 
might  seem  most  conducive  to  the  public  good.     Jefferson 
briefly  summarized  the  Republican  doctrine  on  this  sub- 
ject in  a  letter  to  Monroe: 

"We  conceive  the  Constitutional  doctrine  to  be  that  the 
President  and  Senate  have  the  general  power  of  making 
treaties,  yet  when  they  include  in  a  treaty  matter  confided  by 
the  Constitution  to  the  three  branches  of  the  Legislature,  an 
act  of  legislation  will  be  necessary  to  confirm  these  articles,  and 
that  the  House  as  one  branch  are  perfectly  free  to  pass  the  act 
or  refuse  it,  governing  themselves  by  their  own  judgment 
whether  it  is  for  the  good  of  their  constituents  to  let  the  treaty 
go  into  effect  or  not.  On  this  depends  whether  the  powers  of 
legislation  shall  be  transferred  from  the  President,  Senate,  and 


1 62  The  American  Republic 

House  of  Representatives  to  the  President,  Senate,  and  Pia- 
mingo,  or  any  other  Indian,  Algerine,  or  other  chief." 

Jefferson  acted  on  this  principle  in  the  Louisiana  Treaty 
of  1803.  He  sought  the  judgment  of  the  House  before 
Jefferson  on  the  treaty  was  made,  and  he  approved  the 
the  powers     statement  of  Randolph  that,  in  such  a  treaty, 

of  the  House  ..  r  .        „ 

in  Treaty-  the  Representatives  are  as  free  as  the  Presi- 
Making.  (jent  anci  Senate  were  to  consider  whether  the 
national  interest  requires  or  forbids  their  giving  the  forms 
and  force  of  law  to  the  articles  over  which  they  have  a 
power";  and  there  was,  of  course,  no  trouble  about  the 
law  necessary  to  carry  the  Louisiana  Treaty  into  effect. 
In  1868,  in  the  contest  between  the  two  Houses  over  the 
Alaskan  Treaty,  while  the  House  receded  from  the  larger 
claim  which  it  first  put  forth  it  still  succeeded  in  securing 
the  assent  of  the  Senate,  substantially,  to  the  treaty- 
doctrine  as  announced  by  Jefferson.  After  the  treaty 
The  Alaskan  with  Russia  by  which  we  purchased  Alaska,  in 
Treaty,  1867.  1867,  the  House  hesitated  to  make  the  appro- 
priation necessary  to  fulfil  the  obligation.  General  Banks, 
Chairman  of  the  House  Committee  on  Foreign  Affairs, 
urged  the  appropriation  on  the  ground,  inter  alia,  of  the 
obligation  imposed  by  the  treaty.  Mr.  C.  C.  Washburn, 
in  a  speech  answering  Banks,  July  I,  1868,  held  that  it 
was  the  "right  and  duty  of  the  House  to  inquire  into  the 
treaty,  and  to  vote  or  not  vote  the  money,  according  to 
its  best  judgment."  The  House  appropriated  the  money, 
but  it  prefaced  its  Appropriation  Bill  with  the  declaration 
that  "the  subjects  embraced  in  the  treaty  are  among 
those  which  by  the  Constitution  are  submitted  to  the 
power  of  Congress  and  over  which  Congress  has  juris- 
diction; and  for  these  reasons  it  is  necessary  that  the 
consent  of  Congress  should  be  given  to  the  said  stipula- 
tions, before  the  same  can  have  full  force  and  effect." 
The    House  made  no  mention  of  the    Senate's  ratifica- 


The  Presidency  163 

tion,  but  merely  referred  to  the  fact  that  the  President 
had  entered  into  a  treaty  with  the  Emperor  of  Russia, 
agreeing  to  certain  terms.  This  was  equivalent  to  claim- 
ing that  the  consent  of  the  House  was  as  essential  to  a 
treaty  as  that  of  the  Senate;  and  that  a  treaty  was  a 
subject  for  the  consideration  of  Congress.  The  Senate 
denied  this  pretension  and  rejected  this  declaration  unani- 
mously. A  conference  committee  evolved  a  compromise 
declaration  that 

"  Whereas,  the  President  has  entered  into  a  treaty  with  the 
Emperor  of  Russia,  and  the  Senate  thereafter  gave  its  advice 
and  consent  to  said  treaty  .  .  .  and  whereas  said  stipu- 
lations cannot  be  carried  into  full  force  and  effect,  except  by 
legislation  to  which  the  consent  of  both  Houses  of  Congress  is 
necessary;  therefore,  be  it  enacted  that  there  be  appropriated 
the  sum  of  $7,200,000" 

for  the  purchase  of  Alaska.  This  does  not  state  that  the 
House  is  free  to  refuse  an  appropriation,  or  to  withhold 
legislation,  necessary  to  carry  out  a  treaty,  but  it  must 
be  assumed  that  the  "consent  of  both  Houses"  means 
the  free,  not  the  forced,  consent  of  those  bodies. 

It  cannot  be  said  that  the  law  of  the  unwritten  consti- 
tution of  precedent  and  custom  is  fully  established  upon 
this  point.  The  subject  is  still  open  to  discussion  and 
to  differences  of  opinion.  It  is  still  held  by  high  authority 
that  while  the  House  cannot  be  coerced  to  provide  for 
the  execution  of  a  treaty,  it  is  clearly  the  duty  of  the 
House  so  to  do,  and  the  necessary  appropriation  is  dis- 
cretionary with  Congress  only  in  the  sense  that  the  pay- 
ment of  public  debts  or  the  fulfilment  of  public  obligations 
is  discretionary, — that  is,  it  cannot  be  compelled  by  any 
process  of  execution.1  Yet  what  the  House  should  do  in 
such  cases  is  a  political  rather  than  a  judicial  question; 
1  Cooley,  Constitutional  Law,  p.  103. 


1 64  The  American  Republic 

and  it  is  safe  to  say  that  political  rather  than  judicial 
opinions  and  motives  will  govern.1 

The  tendency  is  clearly  in  favor  of  the  doctrine  an- 
nounced by  Jefferson,  that  while  there  is  a  strong  pre- 
Powerofthe  sumption  in  favor  of  a  treaty  already  made,  yet 
House  to  the  House  has  a  right  to  defeat  a  treaty,  by 
operation  of  withholding  necessary  appropriations,  if  the 
a  Treaty  still  proposed  treaty  is  too  objectionable  or  vio- 
lates too  much  the  House's  appreciation  of  the 
public  welfare.2  "The  House  would  not  now  in  any  case 
consider  itself  under  a  constitutional  obligation  to  appro- 
priate money  in  support  of  a  treaty  the  provisions  of 
which  it  did  not  approve.  It  is  therefore  practically  true 
that  all  such  treaties  must  pass  under  the  judgment  of  the 
House  as  well  as  under  that  of  the  Senate  and  the  Presi- 
dent.3 Judge  Cooley  admits  that,  while  the  refusal  of 
the  House  to  carry  out  a  treaty  would  be  an  extreme 
measure,  yet  "it  is  conceivable  that  a  case  might  arise  in 
which  a  resort  to  it  might  be  justified."  4 

This  view  is  further  supported  by  the  opinion  delivered 
by  Justice  McLean  of  the  Supreme  Court : 

"A  treaty  is  the  supreme  law  of  the  land  only  when  the 
treaty-making  power  can  carry  it  into  effect.     A  treaty  which 

1  The  Supreme  Court  has  recognized  that  legislation  may  be  necessary 
before  a  treaty  can  become  law,  and  that  the  House  as  a  political  branch 
of  the  Government  may  decide  at  its  discretion  whether  it  will  complete  a 
treaty.  "When  the  terms  of  the  stipulations  import  a  contract,  when 
either  of  the  parties  engage  to  perform  a  particular  act,  the  treaty  addresses 
itself  to  the  political,  not  to  the  judicial  .department,  and  the  Legislature 
must  execute  the  contract  before  it  can  become  the  rule  of  the  court." — See 
Chief  Justice  Marshall  in  Foster  vs.  Neilson,  2  Peters,  253.  The  Court  in 
this  case  recognized  a  distinction  between  the  provision  of  a  treaty  which 
is  so  framed  as  to  operate  directly  upon  the  citizens  of  a  country  and  a  pro- 
vision which  merely  stipulates  that  certain  things  shall  be  done.  It  is  in 
the  latter  case  only  that  legislation  by  Congress  is  necessary. — Boutwell, 
The  Constitution  at  the  End  of  the  First  Century,  p.  291. 

8  See  Blaine,  Twenty  Years,  vol.  ii. ,  pp.  333-339. 

' Ibid.,  p.  338.  *  Constitutional  Law,  p.  167. 


The  Presidency  165 

stipulates  for  the  payment  of  money  undertakes  to  do  that 
which  the  treaty-making  power  cannot  do;  therefore  the  treaty 
is  not  the  supreme  law  of  the  land.  To  give  it  effect  the  action 
of  Congress  is  necessary,  and  in  this  action  the  Representatives 
and  Senators  act  on  their  own  responsibility  and  judgment, 
not  on  the  judgment  and  responsibility  of  the  treaty-making 
power.  No  act  of  any  part  of  the  government  can  be  held  to 
be  a  law  which  has  not  all  the  sanction  to  make  it  law."  ' 

However  much  the  President  may  cultivate  the  Senate 
or  individual  Senators  in  seeking  to  provide  smooth  sail- 
ing for  his  treaties,  he  cannot  always  avoid  opposition 
and  antagonism  in  the  open  Senate.  Misunderstandings 
arise,  and  Senators  who  have  been  supposed  to  give 
private  assurances  of  support  are  afterwards  found  in 
open  opposition.  Grant  accused  Sumner  of  giving  a 
private  promise  of  support  in  the  San  Domingo  Treaty, 
an  accusation  which  arose,  no  doubt,  from  a  misunder- 
standing. Occasionally  Senators  of  the  opposing  party 
will  seek  to  defeat  a  President's  treaty  in  order  to  dis- 
parage or  humiliate  his  administration  ;  the  desire  to  win 
a  fraction  of  the  foreign  vote,  the  personal  ambition  of 
Senators  to  win  prominence  by  an  amendment,  the  sup- 
posed sectional  interest  of  a  group  of  States,  all  may  con- 
spire to  carry  Senators  into  opposition.  Altogether  the 
President's  treaty  has  a  hard  gauntlet  to  run. 

It  is  claimed  by  some  that  within  the  last  generation 
the  Executive  initiative  and  independence  in  treaty- 
making  has  been  seriously  impaired, — much  to  impairment 
the  detriment  of  our  national  diplomacy.     A  of  Executive 

-r,         .  1  ,  .    .  -       ,  ,-,  Independence 

President,  the  critics  of  the  Senate  assert,  in  Treaty- 
hardly  ventures  now  upon  a  treaty  of  any  im-  Making, 
portance  unless  he  first  obtains  the  assent  of  the  Foreign 
Affairs  Committee  of  the  Senate,  or  of  its  Chairman  ;  that 
foreigners  look  upon  this  chairman  as  a  sort  of  second 
foreign  secretary ;  having  negotiated  with  one  Secretary 

'Turner  vs.  The  American  Baptist  Missionary  Union. 


1 66  The  American  Republic 

of  State  they  are  not  sure  the  treaty  is  made  till  our 
Senate  Chairman  has  assented  to  it,  and  not  then  unless 
it  is  known  that  he  speaks  for  the  Senate ;  that  the  Secre- 
tary of  State  must  now  have  the  advice  and  consent  of 
the  Senate  in  his  pocket  before  he  starts  in  on  a  negotia- 
tion ;  that  treaties  habitually  fall  through  in  the  Senate, 
or  that  body  so  amends  them  that  the  other  party  to  the 
agreement  withdraws  from  the  negotiation.  The  Bayard- 
Chamberlain  Treaty  of  1888  on  the  Fisheries  question, 
the  Olney-Pauncefote  General  Arbitration  Treaty  of 
1897,  and  the  Hay-Pauncefote  Treaty  of  1901,  were  all 
defeated  by  senatorial  amendment.  The  Senate  insists 
on  playing  a  part  of  the  diplomatic  game  "from  the 
shuffling  of  the  cards  to  the  taking  of  the  last  trick."  It 
treats  a  document  sent  to  it  by  the  President  as  a  treaty 
inchoate,  as  a  rough  draft,  and  then  goes  to  work  upon 
it,  on  the  theory  that  its  task  is  not  one  of  mere  approval 
or  disapproval,  but  as  if  it  were  a  part  of  the  negotiating 
power.  As  a  negotiator  the  Senate  is  inherently  weak. 
It  is  not  in  a  position  to  ask  for  information,  or  to  sug- 
gest its  proposals  to  the  other  party  and,  therefore,  it 
cannot  come  to  terms  with  him  either  by  surrendering  its 
point  or  by  persuading  him  to  yield,  or  by  way  of  a  compro- 
mise. Having  refused  to  be  content  to  be  an  advisory 
body,  the  Senate,  through  influential  Senators,  now  insists 
that  it  should  be  consulted  in  advance,  or  during  the  pro- 
gress of  the  negotiations.  "This  assertion  of  joint  power 
with  the  Executive  in  negotiation  is  part  and  parcel  of  the 
general  assumption  of  power  by  the  Senate.  It  dictates 
appointments  because  it  possesses  the  power  of  confirma- 
tion ;  why  should  it  not  dictate  treaties,  possessing  also 
the  power  of  ratification?  "  Must  the  Secretary  of  State 
now  previously  canvass  the  Senate  to  ascertain  if  a  pro- 
posed treaty  will  receive  the  requisite  number  of  votes? ' 

1 1  have  attempted  here  to  summarize  a  recent  criticism  by  Mr.  Henry 
Loomis  Nelson  under  the  caption,  "  A  Mistake  of  the  Fathers,"  Harper's 


The  Presidency  167 

To  this  criticism  it  is  replied  on  behalf  of  the  Senate 
that  no  foreign  power  has  a  right  to  take  umbrage  be- 
cause the  Senate  offers  an  amendment  to  a  pro- 

1  The  Senate 

posed  treaty;  that  it  is  altogether  proper  for  Asserts 

the  Senate  to  look  upon  itself  as  one  of  the    Co-ordinate 

1  Powers 

negotiators  and  to  regard  a  treaty  submitted  to  with  the 
it,  not  as  completed,  but  as  only  begun,  as  a  .^^^ 
mere  project  for  a  treaty.  As  either  negotiator  Making, 
while  a  treaty  is  in  the  making  may  propose  a  SLodg°! 
new  provision,  which  may  be  either  accepted  or 
rejected  by  the  other  negotiator,  so  the  Senate  may  pro- 
pose new  provisions  which  the  President  will  be  expected 
to  submit  to  the  other  party  to  the  treaty.  The  Senate  is 
co-ordinate  with  the  President  in  treaty-making.  The 
President  begins  a  negotiation  and  continues  it  as  far  as 
he  cares  to  before  submitting  it  to  the  Senate.  The  Senate 
may  then  ask  him  to  continue  it  farther  by  certain  pro- 
posals. Precedents  of  a  century,  too  numerous  to  cite, 
support  this  contention,  and  foreign  powers  should  under- 
stand it.  Before  the  adoption  of  the  Constitution,  the 
treaty-making  was  with  the  States.  Under  the  old  Con- 
federation the  assent  of  nine  States  was  required  to  every 
treaty ;  a  minority  of  the  States  could  thus  control  the 
foreign  relations  of  the  country.  The  States  did  not  en- 
tirely surrender  the  treaty-making  power,  but  in  confer- 
ring on  the  President  an  equal  share  in  this  sovereign 
power  the  States  retained  to  themselves  an  equal  share. 
In  1795,  the  Senate  amended  the  Jay  Treaty,  ratifying 
on  condition  that  a  certain  article  be  suspended.  Since 
then  no  President  has  ever  questioned  the  right  of  the 
Senate  to  amend.1  Such  is  a  summary  defence  of  the 
Senate's  prerogative  in  treaty-making. 

Weekly,  June  22,   1901.     See  also  "  The  Paralysis  of  the  Treaty-Making 
Power,"  The  Nation,  lxxi,  481. 

1  See   "  The  Treaty-Making  Power  of  the  Senate,"  by  Senator  Henry 
Cabot  Lodge,  Scribner's  Magazine,  January,  1902. 


1 68  The  American  Republic 

While  Senators  may  constitutionally  and  conscien- 
tiously oppose  a  President's  foreign  policy,  it  is  clear 
that  they  ought  not  to  do  so  from  personal  and  party 
electioneering  purposes,  as  they  have  been  charged  with 
doing.  The  President  is  much  more  disappointed  in  the 
failure  of  negotiations  than  the  Senators,  because  from 
the  functions  of  his  office  he  is  led  to  see  the  need  of  such 
negotiations,  and,  besides,  individual  Senators  can  evade 
responsibility  and  be  personally  indifferent  to  the  result. 
It  is  difficult  for  public  opinion  to  punish  individual 
Senators  for  the  defeat  of  a  good  treaty.1  But  whether 
the  control  of  our  foreign  policy  should  be  so  divided  is, 
nevertheless,  a  mooted  question.  Those  who  object  to 
the  co-ordinate  participation  of  the  Senate  in  treaty- 
making  have  frequently  criticised  the  Senate,  not  because 
of  its  possession  of  this  power,  but  because  its  use  in  par- 
ticular cases  has  not  been  to  their  liking.  They  would 
give  the  Executive  full  power  in  negotiations,  leaving  to 
,  „.  ,  the  Senate  only  the  right  and  duty  of  assent 

Is  Diplomacy  J  °  J 

Essentially  (and  of  dissent  only  in  extraordinary  cases),  be- 
Executive  ?  cause  jt  js  SUpp0sed  that  secrecy  and  despatch 
are  essentials  to  successful  diplomacy;  and  if  the  nation 
is  bound  to  show  its  whole  hand  in  a  game  with  a  foreign 
opponent  (as  a  discussion  in  an  executive  session  of  the 
Senate  may  do),  "precious  opportunities  of  winning  an 
ally  or  striking  a  bargain  may  be  lost."  This  may  be 
because  diplomacy  is  looked  upon  as  an  international 
game  of  wits  and  expedients,  where  secrecy,  indirection, 
and  finesse  are  deemed  essential  to  success  and  where 
open  candor,  fair  dealing,  and  straightforward  honesty 
can  only  lead  to  impotency  and  defeat.  But  this  is  not 
the  American  view  of  diplomacy,  while  in  America  gov- 

1  Mr.  Kasson,  on  behalf  of  President  McKinley's  administration,  devoted 
much  labor  and  expert  ability  to  the  negotiation  of  important  reciprocity 
treaties.  The  completed  treaties  were  disregarded  by  the  Senate,  hardly  re- 
ceiving from  the  Senate  the  courtesy  of  respectful  attention. 


The  Presidency  169 

ernment  by  secretism  is  regarded  as  a  very  dangerous 
thing;  and  it  is  a  very  healthful  restraint  upon  the  Presi- 
dent that  he  has  to  seek  the  pulse  of  the  nation  and  to 
take  into  his  counsels  men  who  are  in  a  sense  the  repre- 
sentatives of  the  people.  It  gives  the  nation  a  chance  to 
"retire  from  a  doubtful  bargain."  If  a  successful  stroke 
in  foreign  policy  require  unity,  quickness,  and  vigor,  these 
may  be  found  in  the  President's  initiative.  If  his  policy 
be  manifestly  for  the  national  interest  without  room  for 
dispute  or  cavil,  the  action  of  the  President  will  not  fail 
from  lack  of  confirmation.  If  there  be  room  for  dispute, 
the  Senate  may  be  right  and  the  President  wrong;  while 
in  any  case  the  division  of  final  responsibility  puts  us  on 
the  safe  side,  and  it  does  not  prevent  prompt  action  in 
the  face  of  an  unusual  emergency.1 

A  treaty  is  the  supreme  law  of  the  land,  but  it  must  be 
in  harmony  with  the  Constitution,  otherwise,  like  any 
other  so-called  law,  it  is  null  and  void.  Treaties  The  Law  of 
differ  from  laws  only  in  form  and  in  the  organs  Treaties, 
by  which  they  are  made.  It  would  seem  to  follow  that 
a  law  may  be  repealed  by  a  treaty  as  well  as  a  treaty  by 
a  law.  "If  a  treaty  and  a  law  are  in  opposition,  their  re- 
spective dates  must  decide  whether  the  one  or  the  other 
is  to  be  regarded  as  repealed." 

Jay  argued  in  the  Federalist  that  it  was  necessary  to 
have  the  consent  of  both  parties  to  a  treaty  ALawof 
before  it  could  be  annulled  or  cancelled;  that  congress  may 
while  laws  can  be  repealed  by  those  who  make  f  Treaty! 
them,  a  treaty  is  made  by  both  of  the  con- 
tracting parties 3 ;  so  the  consent  of  both  must  be  given 

1  In  England  the  Cabinet  has  an  almost  unlimited  discretion  in  foreign 
affairs,  through  the  Foreign  Secretary.  Parliament  has  power  to  interfere, 
but  it  almost  never  does,  because  the  governmental  majority  will  not  press 
the  Foreign  Office  for  information  and  force  the  exposure  of  the  govern- 
mental policy  when  the  Ministry  declares  it  is  undesirable  that  the  infor- 
mation be  furnished.  2  Von  Hoist,  Constitutional  Law,  p.  202. 

3  No.  64,  Federalist,  p.  405,  Lodge  ed. 


170  The  American  Republic 

before  it  can  be  cancelled.  Gallatin  said  the  same  sub- 
stantially when  he  asserted  that  it  requires  the  same 
power  to  repeal  a  law  that  enacted  it.  But  in  experi- 
ence it  is  found  that  Congress  can  nullify  the  action 
of  the  treaty-making  power  by  the  passage  of  laws  that 
operate  to  defeat  the  provisions  of  treaties.  Congress, 
in  the  Chinese  Immigration  Law,  intentionally  legislated 
in  direct  contravention  of  an  existing  treaty,  and  the 
Supreme  Court  sustained  the  act  as  binding  (municipally), 
on  the  principle  that  the  last  Act  of  Congress  repeals  all 
previous  laws  in  conflict  with  it,  even  though  they  may 
be  treaties. 

The  last  expression  of  the  sovereign  will  must  control. 

It  was  an  Act  of  Congress  of  July  7,    1798,  by  which 

the  stipulations  of  the  famous  French  Alliance 

congress        °f  l77%  were  abrogated.1     The  courts  of  the 

supersedes      United  States  cannot  declare  a  law  unconstitu- 

Treaty  Law.       .  ..... 

tional  upon  the  ground  that  it  violates  treaty 
obligations.  Such  a  question  is  an  international  one  to 
be  settled  by  the  foreign  nations  interested  and  by  the 
political  departments  of  the  Government. 

The  method  by  which  a  treaty  is  abrogated  is  properly 
a  subject  for  international  law.  Though  it  may  be  set 
Abrogation  aside  by  a  mere  act  of  legislation,  yet  for  such 
ofTreaties.  an  aC{-  |-jie  nation  may  be  morally  condemned 
and  such  disregard  of  our  treaty  obligations  may  involve 
us  in  foreign  complications.  But  if  a  treaty  be  violated 
by  the  other  party,  or  if  its  execution  be  impossible,  or 
if  it  require  the  violation  of  recognized  moral  law,  or  if 
its  fulfilment  become  destructive  to  the  state,  the  nation 
may  be  held  justifiable  in  abrogating  it  without  the  con- 
sent of  the  other  party.2  This  question  first  came  up  in 
American  history  in  1793,  when  Washington's  adminis- 

1  See  opinion  of  Justice  Field  in  The  Chinese  Exclusion  Case  130  U.  S., 
581 ;  Baldwin  vs.  Franks,  120  U.  S.,  678. 

2  See  Jefferson's  opinion  to  Washington,  1793. 


The  Presidency  171 

tration  had  to  decide  whether  it  would  hold  the  French 
treaties  of  1778  to  be  binding  upon  us.  The  obligations 
of  these  treaties  seemed  inconsistent  with  the  policy  of 
neutrality  which  it  was  desired  to  pursue  in  the  war  then 
going  on  between  France  and  England.      Ham-        „     ., 

53  o  o  Hamilton 

ilton  held  that  the  Administration  could  re-  and  Jefferson 
nounce  the  treaties  with    France  because  the      ..     onthe 

Abrogation 

conditions  had  so    changed    since    they    were     of  Treaties, 
made  as  to  render  them  disadvantageous  and 
dangerous  to  us. 


fc>v 


"  A  treaty  pernicious  to  the  State  is  of  itself  void,  where  no 
change  in  the  situation  of  either  of  the  parties  takes  place.  By 
a  much  stronger  reason  it  must  become  voidable  at  the  option 
of  the  other  when  the  voluntary  act  of  one  of  the  allies  has 
made  so  material  a  change  in  the  condition  of  things  as  is 
always  implied  in  a  radical  revolution  of  government."  ' 

This  is  a  dangerous  doctrine.  A  nation,  in  the  exercise 
of  an  easy  virtue,  need  not  be  without  the  excuse  of 
changed  conditions  if  it  desired  to  escape  the  obligation 
of  a  treaty  that  had  become  inconvenient.  "Compacts 
between  nation  and  nation  are  obligatory  on  them  by  the 
same  moral  law  which  obliges  individuals  to  observe  their 
compacts  "  2;  and  a  nation,  like  an  individual,  though  it 
has  sworn  to  its  loss,  should  not  break  its  plighted  word. 
A  righteous  nation  will  not  do  so.  A  treaty  should  pro- 
vide a  method  of  renunciation.  If  this  method  be  pur- 
sued, or,  none  being  provided,  if  a  mutual  agreement  to 
abrogate  the  treaty  be  honorably  sought  by  one  party 
and  selfishly  refused  by  the  other;  if  the  treaty  have  be- 
come seriously  injurious  to  the  national  interest,  and  if  the 
conditions  under  which  it  was  made  have  become  obso- 
lete by  the  lapse  of  a  generation  or  more  of  time,  then 
the  nation  may  be  justified  in  declaring  it  abrogated.3 

1  Hamilton  to  Washington,  1793.  '2  Jefferson  to  Washington,  1793. 

3  See  Bouvier's  Law  Dictionary. 


i/2  The  American  Republic 

"  In  the  observance  of  treaties  during  the  last  one  hundred 
and  twenty-five  years,  there  is  not  a  nation  in  Europe  which 
has  been  so  exact  as  the  United  States,  nor  one  which  has  a 
record  so  free  from  examples  of  the  abrogation  of  treaties  at 
the  pleasure  of  one  of  the  signers  alone."  ' 

"The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government,  and  shall 
The  protect  each  of  them  against  invasion ;  and  on 

President       the  application  of  the  legislature,  or  of  the  Ex- 

and  the  ,  ,  . 

Guarantee  ecutive  (when  the  legislature  cannot  be  con- 
ciause.  vened),  against  domestic  violence." 

This  is  called  the  "guarantee  clause  "  of  the  Constitu- 
tion. It  guarantees  to  each  State  (a)  a  republican  form  of 
government,^)  freedom  from  domestic  violence,  (c) a  settle- 
ment between  rival  State  governments.  For  these  three 
purposes  the  United  States  may  interfere  within  a  State. 

(a)  Considerable  discussion  has  arisen  as  to  which 
branch  of  the  Government  should  carry  out  the  guarantee 
of  a  republican  form  of  government.  The  Supreme  Court 
has  held  that 

"  under  this  article  of  the  Constitution  it  rests  with  Congress 
to  decide  what  government  is  the  established  one  in  a  State. 
For  as  the  United  States  guarantee  to  each  State  a  republican 
government,  Congress  must  necessarily  decide  what  govern- 
ment is  established  in  the  State  before  it  can  determine 
whether  it  is  republican  or  not.  And  when  the  Senators  and 
Representatives  of  a  State  are  admitted  into  the  Councils  of  the 
Union,  the  authority  of  the  Government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  This  decision  is  binding 
on  every  other  department  of  the  Government,  and  could  not 
be  questioned  in  a  judicial  tribunal."  2 

'Senator  H.  C.  Lodge,  Scribner's  Magazine,  January,  1902,  on  "The 
Treaty-Making  Power  of  the  Senate." 

8  Luther  vs.  Borden,  7  Howard,  I,  decided  in  1848.  This  case  grew  out 
of  the  Dorr  Rebellion  in  Rhode  Island  in  1842.     The  people  of  Rhode 


The  Presidency  173 

(b)  Applications  for  protection  against  domestic  vio- 
lence and  rival  State  governments  are  made  to  the  Presi- 
dent, though  it  rested  with  Congress  under  Application 
the  Constitution   to   determine   the   means   of     f°rPr°tec- 

.  tion  Against 

fulfilling  this  guarantee.     Congress  might  have       Domestic 
placed  it  in  the  power  of  the  Court  to  decide    .Y1"1611"*3 

r  r  .  Made  to  the 

when  the  contingency  had  happened  which  re-  president, 
quired  Federal  interference;  but  Congress  de-  Actofl795- 
cided  otherwise  and  imposed  upon  the  President,  by  the 
Act  of  February  28,  1795,  the  lawful  duty  of  fulfilling 
this  guarantee,  upon  the  call  of  the  legislature  of  the 
Island  continued  to  live  under  the  charter  of  1663  until  1842,  with  only  a 
few  changes  touching  the  right  of  suffrage.  This  charter  limited  the  right 
of  suffrage  unjustly,  and  provided  for  unfair  and  unequal  representation, 
and  it  did  not  provide  for  its  own  amendment.  Many  citizens  became  dis- 
satisfied because  the  legislature  would  not  afford  relief.  A  proclamation 
was  issued  by  petitioners,  calling  for  a  vote  of  the  freeholders  on  a  new 
constitution.  A  vote  was  held,  and  it  was  claimed  that  a  majority  had  voted 
for  a  new  government.  The  new  government,  through  Dorr,  its  governor- 
elect,  proceeded  under  its  new  constitution  to  assert  its  au- 
thority by  force  of  arms.  The  old  government  resisted  this,  The  Dorr  Re- 
called out  the  State  militia  to  subdue  the  rebellion,  and  mther 
passed  an  act  declaring  martial  law.     Dorr,  the  newly  elected  Borden, 

governor,  marched  upon  the  State  arsenal  with  an  armed 
force  ;  but  he  failed  to  capture  the  arsenal  and  a  few  days  later  disbanded 
his  forces  and  left  the  State.  He  was  subsequently  arrested,  convicted  of 
treason,  and  sentenced  to  life  imprisonment,  but  was  subsequently  par- 
doned. Luther  was  a  follower  of  Dorr.  Borden,  acting  under  the  orders  of 
the  old  government,  broke  into  Luther's  premises  for  the  purpose  of  ar- 
resting him.  Luther  sued  for  trespass,  claiming  that  such  an  act  was 
wrongful  and  illegal.  The  question  at  issue  then  was,  which  government 
was  the  legal  and  the  constitutional  one.  The  verdict  was  given  for  Bor- 
den, both  in  the  State  courts  and  also  in  the  Federal  courts  on  appeal ; 
this  recognized  the  old  charter  government  as  legal.  This  was  done  be- 
cause it  was  held  Congress  had  recognized  the  old  government  in  admitting 
its  Senators  and  Representatives,  and  because  the  President  had  officially 
recognized  the  old  governor.  During  the  period  of  Reconstruction, 
Congress  claimed  to  act  with  the  President  in  guaranteeing  a  republican 
form  of  government  to  the  Southern  States.  Thaddeus  Stevens  and  other 
leaders  of  the  congressional  party  held  that  the  "  United  States"  in  this 
clause  meant  the  Congress  and  the  President  as  the  entire  lawmaking 
body, — the  President  to  carry  out  the  decision  of  the  combined  legislature. 


i/4  The  American  Republic 

State,  or  of  the  Executive  if  the  legislature  cannot  be 
convened.  In  the  Rhode  Island  case  of  1842,  upon  the 
application  of  the  governor  under  the  charter  govern- 
ment, the  President  recognized  him  as  the  Executive 
power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority,  if  it  should  be  found 
necessary  for  the  General  Government  to  interfere;  and 
it  is  admitted  that  it  was  the  knowledge  of  this  decision 
that  put  an  end  to  the  armed  opposition  to  the  charter 
government,  and  prevented  any  further  efforts  to  estab- 
lish by  force  the  proposed  (Dorr)  constitution.  The 
interference  of  the  President,  therefore,  by  announcing 
his  determination,  was  as  effectual  as  if  the  militia  had 
been  assembled  under  his  orders.  And  it  should  be 
equally  authoritative.  No  court  of  the  United  States 
would  have  been  justified  in  recognizing  the  opposing 
party  as  the  lawful  government,  or  in  treating  as  wrong- 
doers, or  insurgents,  the  officers  of  the  government  which 
the  President  had  recognized.1 

The  court,  therefore,  considers  Federal  interference  as 
a  political  subject  and  holds  that  the  Constitution  and 
Federal  *-he  ^aws  (Act  of  February  28,  1795)  give  to  the 

interference  President  the  power  to  determine  whether  or 
forPoHticai  not  a  State  is  in  a  condition  of  insurrection,  and 
Determin-  it  is  his  duty  to  recognize  which  is  the  true 
government.  He  should  not  be  hampered  or 
delayed  in  cases  of  this  kind,  and  if,  in  his  opinion,  the 
guarantee  clause  (either  of  republican  government  or 
freedom  from  domestic  violence)  is  violated,  it  is  for  him 
to  declare  martial  law  and  order  out  Federal  troops,  if 
necessary.  The  Federal  courts  cannot  review  his  action, 
nor  interfere  with  his  political  conduct. 

It  is  said  that  this  power  is  dangerous  to  liberty  and 
may  be  abused.  All  power  may  be  abused  if  placed  in 
unworthy  hands.  But  where  would  this  power  be  safer? 
1  Luther  vs.  Borden,  7  Howard,  1  ;  Boyd's  Cases,  pp.  649-650. 


The  Presidency  175 

The  power,  to  be  effectual,  must  be  prompt.  At  all 
events,  this  power  is  conferred  by  the  Constitution  on  the 
President,  and  it  is  for  him  and  no  other  to  determine  as 
to  the  conditions  in  a  State,  and  what  is  the  true  character 
of  the  government  therein.  If  the  President  should  fall 
into  error  and  invade  the  rights  of  the  people  of  the  State, 
it  would  be  in  the  power  of  Congress  to  apply  the  proper 
remedy.  The  courts  must  apply  the  law  as  they  find  it.1 
The  President  may  not  interfere  against  domestic  vio- 
lence except  on  the  application  of  the  legislature  of  the 
State  or  of  the  Executive  of  the  State  if  the        „    ... 

must  the 

legislature  cannot  be  convened.2  But  in  case  President 
a  domestic  insurrection  within  a  State  violates  AJp^tjJne 
United  States  law  and  obstructs  the  instru-  of  the  state 
ments  or  interrupts  the  operations  of  the  func- 
tions of  the  United  States  Government,  the  President 
may  intervene  without  awaiting  the  application  of  the 
State  government  or  legislature.  A  notable  instance  of 
this  is  seen  in  President  Cleveland's  action  in  the  great 
strikes  in  Chicago  in  1894,  in  which  he  interfered  to  en- 
force the  United  States  postal  laws  and  the  Interstate 
Commerce  Act.  This  is  the  President's  duty  under  an- 
other clause  of  the  Constitution, —  that  which  requires 
him  to  "take  care  that  the  laws  be  faithfully  executed." 
But  it  is  clearly  the  intention  of  the  Constitution,  and  in 
accordance  with  the  early  precedents  of  the  Government, 
that  it  is  the  function  of  the  States  to  preserve  domestic 
order,  and  that  the  United  States  Government  is  not  to 
interfere  (for  other  purposes  than  to  protect  its  own  rights 
and  interests)  except  on  the  application  of  the  State  au- 
thorities. Of  the  necessity  for  aid  the  State  authorities 
are  to  be  the  judge.3 

1  Luther  vs.  Borden. 

3  Constitution  and  Act  of  February  28,  1795. 

3  See  Luther  vs.  Borden,  7  Howard,  42  ;  Bryce,  vol.  i.,  p.   55  ;    Inter, 
national  Review  for  January,  1875. 


176  The  American  Republic 

During  the  late  civil  strife  in  Kentucky  between  two 
rival  governments,  Mr.  Taylor,  the  Republican  governor, 
appealed  for  Federal  aid  against  an  opposing  Democratic 
legislature.  The  aid  was  refused  by  President  McKin- 
ley's  administration.  It  was  explained  that  the  exact 
functions  of  the  United  States  Army,  when  acting  within 
a  State,  have  been  most  carefully  defined  and  set  out  in 
General  Order  26,  promulgated  July  24,  1894.  Under 
the  terms  of  this  order,  the  Government  of  the  United 
States  can,  of  its  own  volition,  use  the  Federal  troops 
within  a  State  only  when  insurrection,  violence,  unlaw- 
ful combinations,  or  conspiracies  in  any  State  so  obstruct 
or  hinder  the  execution  of  the  laws  thereof  and  of  the 
United  States  as  to  deprive  any  person  or  class  of  people 
of  such  State  of  any  of  the  rights,  privileges,  or  immuni- 
ties or  protection  named  in  the  Constitution  and  secured 
by  the  laws  for  the  protection  of  such  rights,  privileges, 
or  immunities,  and  the  constituted  authorities  of  such 
State  are  unable  to  protect,  or  from  any  cause  fail  in  or 
refuse  protection  of  the  people  in  such  rights.1 

The  war  power  of  the  President  comes  to  him  by  virtue 
of  the  fact  that  he  is  made  the  Commander-in-Chief  of 
The  war  ^e  Army  and  Navy  of  the  United  States  and 
Power  of  the  is  charged  with  "the  faithful  execution  of  the 
President.      iaws< "     jn   a  c{vii   or   foreign  war,   or  in   the 

midst  of  great  civil  commotion,  this  may  lead  to  a  vast 
and  dangerous  exercise  of  power.  During  our  Civil  War, 
President  Lincoln  in  his  military  power  was  almost  a  dic- 
tator, exercising  more  personal  power  than  any  English- 
speaking  ruler  since  Oliver  Cromwell.  Congress  consented 
to  what  he  did,  and  it  was  not  made  clear  to  what  extent 

1  Another  case  in  which  the  United  States  troops  might  be  employed  is 
set  out  in  Sec.  5297,  Revised  Statutes,  authorizing  the  President  to  em- 
ploy troops  in  case  of  an  insurrection  in  any  State  against  the  government 
thereof  "  on  application  of  the  legislature  of  said  State  or  of  the  Executive 
thereof  when  the  legislature  cannot  be  convened." 


The  Presidency  177 

the  President  could  be  restrained  by  law.  When  mili- 
tary law  succeeds  the  civil  law,  the  President,  as  the 
military  chieftain,  becomes  absolute.     This  ap- 

...  ,  .  1-11  Extent  of 

plies  only  to  the  territory  over  which  the  oper-  Executive 
ations  of  war  apply.  Without  waiting  for  a  . Power 
meeting  of  Congress,  called  for  July  4,  1861, 
the  President  proclaimed  a  blockade  of  the  Southern  ports, 
called  for  seventy-five  thousand  volunteers,  enlisted  forty- 
two  thousand  three-year  men  into  the  service,  and  in- 
creased the  regular  army  by  twenty-two  thousand  men ; 
later  in  the  war  he  appointed  and  removed  generals  and 
commanders,  directed  and  controlled  the  movements  of 
fleets  and  armies,  executed  or  pardoned  criminals,  sup- 
pressed newspapers,  arrested  and  imprisoned  their  editors 
and  other  agitators  without  trial,  suspended  the  writ  of 
habeas  corpus,  and,  finally,  exercised  the  vast  power  of  de- 
claring free  by  proclamation  all  the  slaves  of  the  insur- 
rectionary States.  These  acts  were  generally  approved 
by  Congress,  and  certain  of  them  were  sustained  by  the 
Supreme  Court  in  cases  testing  the  validity  of  the  prizes 
made  for  violation  of  the  President's  blockade.  All  these 
powers,  of  course,  are  military  powers  and  are  not  to  be 
thought  of  in  connection  with  the  President  as  a  civil 
officer. 

The  suspension  of  the  writ  of  habeas  corpus  is  a  most 
important  power.  It  is  an  exercise  of  the  power  of  mar- 
tial law.     The  privilege  of  the  habeas  corpus  is 

r     1  .  .......  Tf       Suspension 

one  of  the  great  muniments  of  civil  liberty.  If  of  the  writ 
the  citizen  has  not  this  right  his  most  precious       of  Habeas 

....  ,  .  Corpus. 

civil  interests  are  endangered ;  he  may  be  in 
danger  at  any  time  of  arbitrary  arrest  and  imprisonment. 
If  a  citizen  is  arrested  and  kept  in  custody  charged  with 
a  crime,  he  applies  through  his  attorney  for  the  writ  of 
habeas  corpus.  The  civil  judge  issues  the  writ,  command- 
ing the  sheriff,  or  marshal,  or  executive  officer,  to  have 
the  body  or  person  of  the  prisoner  in  court  in  order  that 


i/8  The  American  Republic 

examination  may  be  had  to  determine  whether  the  pris- 
oner is  lawfully  held.  It  will  be  the  duty  of  the  Court 
to  order  the  prisoner  to  be  released,  or  to  be 
ofthe  writ  held  for  trial,  according  to  the  evidence.  Un- 
of  Habeas       ^er  the  right  of  habeas  corpus  the  accused  is 

Corpus.  .11  1   •  i.  •    1   •  I-         i 

entitled  to  this  preliminary  trial  immediately  or 
as  soon  as  practicable  after  arrest.  Formerly,  in  despotic 
times,  princes  often  caused  the  arrest  of  suspected  per- 
sons, or  persons  whom  they  wished  to  punish,  and  kept 
them  in  prison  months  and  years  without  allowing  the 
accused  a  trial  in  open  court.  The  privilege  of  this  writ 
has  been  one  of  the  great  objects  of  conflict  in  all  the 
constitutional  struggles  of  the  past.  To  deny  this  right 
is  to  suspend  civil  liberty,  to  do  away  for  a  time  with  all 
civil  rights.  The  Constitution  recognizes  that  it  may  be 
necessary  to  do  this ;  for  in  civil  war,  or  insurrection,  the 
ordinary  civil  processes  are  not  sufficient  to  preserve  order 
and  to  overcome  resistance.  The  courts  would  become 
blocked,  and  more  drastic  summary  processes  must  be 
made  use  of  to  restore  order.  It  is  to  this  end  the  Presi- 
dent is  entrusted  with  the  military  power.  In  the  hands 
of  an  ambitious  and  unscrupulous  man  such  power  is 
very  dangerous  and  may  lead  to  usurpation  and  military 
autocracy,  one  of  the  most  despicable  forms  of  tyranny. 
It  is  only  the  stern  necessity  of  self-preservation  that  can 
justify  the  vesting  in  one  man  of  this  supreme  power, 
and  it  should  be  understood  and  emphasized  that  in  doing 
so — in  abandoning  the  habeas  corpus  and  a  civil  trial — 
the  nation,  as  Blackstone  expresses  it,  is  merely  consent- 
ing "to  part  with  its  liberty  for  awhile  in  order  to  preserve 
it  forever."  Only  such  a  great  end  can  justify  such 
means.  Therefore  the  Constitution  provides  that  only 
when  imminent  danger  threatens  the  public  safety  is  the 
Government  justified  in  the  suspension  of  constitutional 
and  civil  government  and  the  substitution  of  martial  law. 
The  Constitution  says:  "The  privilege  of  the  writ  of 


The  Presidency  179 

habeas  corpus  shall  not  be  suspended,  unless  when  in  cases 
of  rebellion  or  invasion  the  public  safety  may  require 

1L*  Is  it  an 

Controversy  has  arisen  as  to  whose  function      Executive 

.     .  11  r   1      i  -r\  Function 

it  is  to  suspend  the  writ  of  habeas  corpus.     Does  to  Determine 
it  belong  to  the  President  or  to  Congress  to         when  to 

,  ,  ,.  r  .  .    .  Suspend  the 

decide  when  the  public  safety  requires  it?  writ  of 

In  1861,  a  direct  conflict  arose  on  this  subject  Habeas 

Corpus  ? 

between  the  executive  and  the  judicial  power. 
In   May,    1861,   John  Merryman,   of  Baltimore,   was  ar- 
rested,  charged  with  aiding  armed  hostility  against  the 
Government,    of    communicating   with    rebels,  The 

and  of  various  acts  of  treason.  He  applied  Merryman 
by  petition  to  Chief  Justice  Taney  for  a  writ 
of  habeas  corpus  and  a  hearing.  The  Chief  Justice 
issued  the  writ,  but  General  Cadwalader  declined  to  re- 
spond, alleging  that  he  was  authorized  by  the  Presi- 
dent of  the  United  States  to  suspend  the  writ  of  habeas 
corpus  for  the  public  safety.  An  attachment  could  not 
be  executed  against  the  commander  by  a  posse  comi- 
tatus  against  a  superior  military  force,  and  the  Chief 
Justice  was  powerless  to  release  the  prisoner  by  civil  pro- 
cess. In  this  case  President  Lincoln  claimed  the  right 
not  only  to  suspend  the  writ  himself  at  his  discretion,  but 
to  delegate  that  discretionary  power  to  a  military  officer, 
and  to  leave  it  to  him  to  determine  whether  he  will  or 
will  not  obey  a  judicial  writ  that  may  be  served  upon 
him.  Chief  Justice  Taney  affirmed,  that  under  Taney's 
the  Constitution  and  the  laws,  neither  the  Presi-  opinion. 
dent  can  suspend  the  privilege  of  the  writ  of  habeas  corpus, 
nor  can  he  authorize  any  military  officer  to  do  so.  The 
Chief  Justice  asserted  that  previously  it  was  a  point  of 
constitutional  law  upon  which  there  was  no  difference  of 
opinion,  and  that  it  was  admitted  on  all  hands  that  the 
privilege  of  the  writ  could  not  be  suspended  except  by 
1  Art.  I,  Sec.  9,  CI.  2. 


180  The  American  Republic 

Act  of  Congress.  In  English  law  and  history  it  had  al- 
ways been  a  legislative  act  and  not  an  executive  act. 
This  was  also  the  opinion  of  Chief  Justice  Marshall  as  to 
the  law  in  America.1 

"  When  the  conspiracy  of  which  Aaron  Burr  was  the  head 
became  so  formidable,  and  was  so  extensively  ramified  as  to 
justify,  in  Mr.  Jefferson's  opinion,  the  suspension  of  the  writ, 
he  claimed,  on  his  part,  no  power  to  suspend  it,  but  com- 
municated his  opinion  to  Congress,  with  all  the  proofs  in  his 
possession,  in  order  that  Congress  might  exercise  its  discretion 
upon  the  subject,  and  determine  whether  the  public  safety  re- 
quired it.  And  in  the  debate  which  took  place  upon  the  sub- 
ject no  one  suggested  that  Mr.  Jefferson  might  exercise  the 
power  himself,  if,  in  his  opinion,  the  public  safety  demanded 
it."2 

After  giving  an  argument  in  support  of  his  view,  the 
Chief  Justice  declared  that  a  military  government  had 
been  substituted  for  the  government  of  the  Constitution, 
ordered  his  opinion  filed,  and  a  copy  sent  to  the  Presi- 
dent, with  a  call  upon  him  "to  perform  his  constitutional 
duty  to  enforce  the  laws ;  in  other  words,  to  enforce  the 
process  of  this  court."3  The  dictum  of  Chief  Justice 
Marshall  was  thus  reasserted  as  a  positive  ruling,  and 
this  ruling  has  been  concurred  in  by  a  series  of  decisions 
in  the  United  States  and  State  courts,  and  by  other 
recognized  authorities. 

President  Lincoln's  Attorney-General  advised  him  that 

1  Bollman  case. 

2  Opinion  of  Chief  Justice  Taney  in  ex  parte  Merryman,  McPherson's 
History  of  the  Rebellion,  p.  155.  See  ex  parte  Bollman  and  Swartwout, 
4  Cranch,  100,  per  Marshall,  C.  J.  ;  Thayer's  Cases  in  Constitutional  Law, 
vol.  ii.,  pp.  2374-2375. 

3  Taney  quotes  Story  and  Marshall  in  support  of  his  view.  For  reply, 
see  the  argument  of  Hon.  Reverdy  Johnson  in  Moore's  Rebellion  Records, 
vol.  ii.,  p.  185,  and  the  argument  of  Attorney-General  Bates  in  McPher- 
son's History  of  the  Rebellion,  p.  158. 


The  Presidency 


i»i 


it  was  for  the  President  alone  to  pronounce  upon  the  po- 
litical considerations  which  determine  in  what  cases  a  sus- 
pension of  the  writ  of  habeas  corpus  might  take 
place,  and  that  the  authority  conferred   upon         General 
him  by  the  Constitution  was  in  no  wise  affected  Bates's  View 

11  •   i  1   •    1        i  r  on  Suspension 

by  the  powers  with  which  the  act  of  1789  had  of  Habeas 
invested  the  judges  with  regard  to  the  writ  of  Corpus. 

habeas  corpus.  A  note  of  Secretary  Seward  to  Lord 
Lyons,  in  October,  1861,  contains  a  good  summary  state- 
ment of  the  claims  of  executive  power  in  this  respect. 

"It  seems  necessary  to  state  that  Congress  is  by  the 
Constitution  invested  with  no  executive  power  or  respon- 
sibility whatever,  but,  on  the  contrary,  the  Presi-  secretary 
dent  of  the  United  States  is,  by  the  Constitution  Seward, 
and  laws,  invested  with  the  whole  executive  power  of  the 
Government,  and  charged  with  the  supreme  direction  of  all 
ministerial  agents,  as  well  as  of  the  whole  land  and  naval 
forces  of  the  United  States,  and  that,  invested  with  these 
ample  powers,  he  is  charged  by  the  Constitution  and  laws 
with  the  absolute  duty  of  suppressing  insurrection,  as  well  as 
of  preventing  and  repelling  invasion,  and  that  for  these  pur- 
poses he  constitutionally  exercises  the  right  of  suspending  the 
writ  of  habeas  corpus  whenever  and  wheresoever  and  in  what- 
soever extent  the  public  safety,  endangered  by  treason  or  in- 
vasion in  arms,  in  his  judgment  requires."  ' 

"  If  it  be  said  that  these  acts  of  the  President  in  time  of  war 
are  unconstitutional,  the  answer  is,  that  as  commander-in-chief 
of  the  army  and  navy,  the  President  has  the  constitutional 
power  to  employ  the  means  recognized  by  the  laws  of  war  as 
necessary  to  conquer  the  enemy.  Congress  can  pass  no  law 
which  can  deprive  the  President  of  the  power  conferred  in 
creating  him  commander-in-chief."  2 

1  Cited  in  Stevens's  Sources  of  the  Constitution  of  the  United  States,  pp. 
162,  163.     See  also  North  American  Review,  November,  1880. 

2  Landon,  Constitutional  History  and  Government  of  the  United  States, 
p.  205. 


1 82  The  American  Republic 

In  his  conduct  of  a  war  the  President  must  have  all 
the  powers  recognized  by  the  laws  and  usages  of  war. 

President  Hayes  is  represented  as  speaking  of  the  war 
powers  of  the  President  as  follows : 

"  The  President  may  at  any  time  force  Congress  into  war. 

The  complicate  relations  with   foreign   powers   renders   this 

always  easy.       No   man  has  yet  defined  the  war 

President 

Hayes  on  powers  or  placed  a  limit  on  them.  The  executive 
the  war  power  is  large  because  not  defined  by  the  Consti- 
tution. The  real  test  has  never  come,  because  the 
Presidents  have,  down  to  the  present  time,  been  conservative 
men,  and  have  kept  within  limited  range.  The  law  of  usage 
regulates  the  administration.  But  if  a  Napoleon  ever  became 
President  he  could  make  the  Executive  almost  what  he  wished 
to  make  it.  The  war  power  of  President  Lincoln  went  to 
lengths  which  could  scarcely  be  surpassed  in  despotic  principle. 
This  power  has  been  described  by  Mr.  Bryce  as  the  power  of 
a  dictator."  ' 

The  appointing  power  is  one  of  the  chief  functions  of 
the  President,  and  it  probably  gives  him  more  real  po- 
litical influence  than  any  other  function  con- 

1  he  •> 

Appointing  ferred  upon  him.  He  is  charged  "to  see  that 
the  laws  be  faithfully  executed  ";  and,  conse- 
quently, he  must  be  allowed  to  select  and  control  the 
persons  by  whom  the  laws  are  to  be  executed.  It  will 
be  seen  from  the  language  of  the  Constitution  a  that  Con- 
gress can  greatly  reduce  the  power  of  the  President  over 
appointments.       Congress    may   by    law    specify    certain 

1  Stevens's  Sources  of  the  Constitution  of  the  United  States,  p.  169. 

2  "With  the  advice  and  consent  of  the  Senate,  he  shall  appoint  am- 
bassadors, other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States  whose  appointments  are  not 
herein  otherwise  provided  for  and  which  shall  be  established  by  law  ;  but 
the  Congress  may  by  law  vest  the  appointment  of  such  inferior  officers,  as 
they  think  proper,  in  the  President  alone,  and  in  the  courts  of  law,  or  in 
the  heads  of  departments." — Constitution,  Art.  II.,  Sec.  2,  CI.  2. 


The  Presidency  183 

qualifications  for  appointees,  determine  the  time  and  con- 
dition of  their  tenure,  and  provisions  for  their  promotion. 
It  was  of  course  not  supposed  at  the  origin  of  the  Consti- 
tution that  the  President  would  ever  make  appointments 
or  removals  from  political  motives,  or  that  the  Senators 
would  take  from  him  the  initiative  and  control  in  ap- 
pointments.1 From  the  wonderful  growth  of  the  coun- 
try and  the  resulting  great  army  of  appointive  offices,  it 
will  be  obvious  what  a  tremendous  political  power  the 
President  might  exercise  if  he  chose  to  use  his  executive 
power  to  erect  into  a  great  machine,  into  an  organized 
and  disciplined  corps,  all  his  subordinates  for  the  promo- 
tion of  his  ends.  With  one  hundred  and  fifty  thousand 
subordinates,  commanding  a  hundred  millions  in  salaries, 
it  would  be  difficult  to  estimate  the  tremendous  power 
the  President  could  wield  if  he  chose  to  use  the  powers  of 
his  office  corruptly. 

In  1789,  during  the  first  session  of  Congress  a  debate 
occurred  in  that  body  involving  the  power  of  the  Presi- 
dent to  remove  an  officer  appointed  by  him  The  Power 
with  the  advice  of  the  Senate.  The  Senate's  of  Removal, 
consent  being  necessary  to  appoint,  should  it  also  be 
necessary  to  removal?  This  debate  arose  on  a  bill  pro- 
viding for  the  organization  of  the  State  Department. 
The  bill  originally  contained  a  provision  conferring  the 
power  of  removal  upon  the  President,  but  this  was  finally 
struck  out  as  being  superfluous,  and  a  clause  was  substi- 
tuted which  took  it  for  granted,  or  as  clearly  implied, 
that  this  power  belonged  to  the  President. 

In  the  debate  on  this  subject  it  was  recognized  by  all2 
that,  while  the  Constitution  did  not  declare  by  whom  the 

'For  the  abuses  in  these  directions  seethe  subjects,  "Senatorial  Cour- 
tesy," pp.  225  et  seq.,  and  the  "  Spoils  System,"  in  the  author's  Political 
Parties  and  Party  Problems. 

s  Except  Mr.  Smith  of  South  Carolina,  who  held  that  all  administrative 
offices  should  be  held  by  the  tenure  of  good  behavior  and  that  removals 
be  effected  only  by  impeachment. 


1 84  The  American  Republic 

power  of  removal  should  be  exercised,  there  must  exist 
somewhere  a  prompt  and  summary  power  of  removing 
an  incompetent,  unfit,  or  corrupt  officer  for  offences  short 
of  violations  of  the  law.     Two  principal  views  were  held : 

i.  The  President  and  the  Senate  should  be  combined 
in  removals,  as  in  appointments.  Otherwise,  it  was. 
thought,  the  influence  of  the  Senate  would  be 
v?ewsasgto  entirely  nugatory  in  restraining  the  President, 
power  of  Congress  cannot  confer  on  the  President  what 
the  Constitution  has  not  conferred,  and  it 
would  be  better  to  leave  the  courts  to  determine  where 
the  power  rests. 

2.  The  other  view  asserted  that  the  power  of  removal 
should  rest  with  the  President  alone. 

In  his  defence  of  the  Constitution,  Hamilton  had  held 
that  the  consent  of  the  Senate  would  be  necessary  to  dis- 
Hamiiton-s  place  as  well  as  to  appoint.  It  was  upon  this 
view.  check  he  relied  to  prevent  a  sweeping  revolu- 

tion in  the  offices  upon  a  change  of  administration, — if 
an  unscrupulous  President  were  to  be  the  sole  dispenser 
of  the  offices  and  should  attempt  a  change  for  the  sake  of 
bringing  in  personal  or  party  favorites.1  Madison,  Ham- 
ilton's colaborer  in  the  Federalist,  took  a  different  view. 
Madison's  As  to  the  danger  that  a  President  might  abuse 
view.  the  power  of  removal  by  using  it  for  personal 

and  party  purposes,  Madison  asserted  that  the  wanton  re- 
moval of  meritorious  officers  would  subject  the  President 
to  impeachment  and  removal  from  his  own  high  trust. 

"  Believing  that  no  President  would  so  abuse  the  powers  of 
his  office,  and  that  he  would  be  impeached  if  he  did,  Madison 
insisted  that  the  power  of  removal  should  rest  solely  with  the 
President.  He  and  others  in  Congress  urged  that  legislative 
action  should  remove  all  doubt  on  this  subject;  that  what  was 
omitted  in  the  Constitution  should  be  supplied  by  legislation; 

1  See  Federalist,  No.  77,  and  note  in  Ford's  Federalist,  pp.  511,  512. 


The  Presidency  185 

that  the  removal  of  executive  officers  was  an  act  so  executive 
in  its  character  and  so  intimately  related  to  the  execution  of 
the  laws,  that  it  was  clearly  among  the  President's  constitu- 
tional prerogatives,  that  participation  of  the  Senate  in  removals 
would  break  down  the  separation  of  the  powers  deemed  so 
essential  in  the  Constitution.  If  a  removal  be  desired  by  the 
President  and  denied  by  the  Senate,  the  President  would  still 
be  charged  with  the  faithful  execution  of  the  laws  while  de- 
prived of  the  loyalty  and  constancy  of  his  subordinates  and 
assistants.  These  would  resent  his  efforts  to  remove  them  and 
would  seek  to  thwart  him  in  his  work  and  they  would  rely 
upon  another  branch  of  the  Government  for  their  retention, 
and  this  would  lead  to  defiant  insubordination."  ' 

Congress  adopted  Madison's  view — by  the  casting 
vote  of  the  Vice-President — and  recognized  the  power  of 
removal  as  resting  with  the  President   alone. 

_, .        .  •  r        1  ^  •  The 

This  interpretation  of   the  Constitution  went  contest 

unquestioned  for  a  period  of  forty  years,  until  under 

Jackson's  abuse  of  this  power  by  his  sweeping 
removals.  His  wholesale  treatment  of  public  places  as 
party  spoils  led  many  to  question  the  wisdom  of  the 
decision  of  1789.  The  alarming  growth  of  executive 
patronage1  and  the  use  to  which  it  was  now  put  led  both 
Mr.  Webster  and  Mr.  Calhoun,  two  of  America's  greatest 
constitutional  lawyers,  to  array  themselves  against  Madi- 
son's view  of  the  sole  executive  power  of  removal.  The 
abuse  of  a  power,  however,  is  no  evidence  of  its  unconsti- 
tutionality. The  spoils  system  and  the  danger  The..Four 
from  executive  patronage  had  been  directly  Years' Law," 
promoted  by  the  notable  law  of  1820,  known  as 
the  "four  years'  law."     This  law  provides  a  limited  term 

'See  ex-President  Cleveland  on  "Executive  Independence,"  Atlantic 
Monthly,  June  and  July,  1901  ;  Rives's  Madison,  vol.  iii.,  p.  35;  Annals 
of  Congress,  vol.  i.,  p.  503. 

2  See  Calhoun's  famous  report  on  this  subject,  Jan.  9,  1835,  and  his 
Speeches  of  Feb.,  1835,   Works,  vol.  ii.,  pp.  426,  446. 


1 86  The  American  Republic 

of  four  years  for  the  offices  mentioned.  It  was  gotten 
up  by  Mr.  Crawford,  Secretary  of  the  Treasury,  for  the 
purpose,  as  John  Quincy  Adams  states,  of  securing  "for 
Mr.  Crawford  the  influence  of  all  the  incumbents  in  office 
upon  peril  of  displacement,  and  of  five  or  ten  times  as 
many  ravenous  office-seekers  eager  to  supplant  them."  ' 
The  law  itself  vacates  the  offices,  and  this  enables  a 
President  to  displace  satisfactory  officers  without  the  re- 
sponsibility or  odium  of  dismissing  them,  and  to  reward 
his  party  and  personal  favorites  without  exercising  the 
power  of  removal.  Madison's  view  and  the  Congres- 
sional decision  of  1789,  which  gave  the  sole  power  of  re- 
moval to  the  President,  required  positive  executive  action 
to  cause  a  vacancy.  The  law  of  1820  vacated  the  entire 
civil  service  of  the  country  during  the  term  of  every 
President,  who, 

"  without  an  order  of  removal,  could  fill  every  place,  small  or 
large,  from  Maine  to  California,  from  the  mouth  of  the  Co- 
lumbia to  the  Keys  of  Florida,  at  his  pleasure.     In 
Vast  .         ,  . 

Political         contemplating  the  possible  results  of  so  vast  a  power 

Power  of        Mr.  Calhoun  said,  in  1835,  that,  if  it  should  ever 
deal  with  a  corps  of  one  hundred  thousand  office- 
holders, the  friends  of  liberty  might  surrender  in  despair,  for 
the  people  could  not  resist  them  for  six  months."  2 

The  use  of  the  offices  to  promote  party  ends  and  to 
advance  legislation  that  the  President  favors  is  one  of 
the  most  palpable  and  dangerous  forms  of  bribery.  It 
stimulates  both  congressional  intrigue  and  executive 
ambition,  and  it  tends  to  the  corruption  of  our  whole  po- 
litical life.  The  President  who  buys  votes  by  appoint- 
ments betrays  the  national  honor  and  becomes  a  corrupter 

1  Speech  of  George  William  Curtis,  Proceedings  of  National  Civil  Service 
Reform  League,  1883,  Orations  of  Curtis. 

2  Address  of  George  William  Curtis,  Proceedings  of  National  Civil  Ser- 
vice Reform  League,  1883. 


The  Presidency  187 

of  public  morals. '  Yet  notwithstanding  the  grave  dangers 
that  were  to  be  apprehended  from  this  source,  the  great 
arguments  of  Webster  and  Calhoun  against  unlimited 
executive  removal,  combined  with  the  powers  of  appoint- 
ment, did  not  succeed  in  changing  the  constitutional  in- 
terpretation in  this  regard.  Congress  did  not  interfere  in 
removals  until  the  notable  conflict  with  Presi- 

Tenure  ot 

dent  Johnson  in  1867.  In  that  year  the  Tenure  office  Act, 
of  Office  Act  was  passed,  for  the  avowed  ^^  ™« 
purpose  of  preventing  removals  from  office  by  president 
President  Johnson.  The  majority  thus  set  ioh™™0Zs. 
aside  the  congressional  construction  given  to 
the  Constitution  seventy-eight  years  before.     This  Act 

1  Responsible  writers  have  charged  this  serious  abuse  of  his  office  upon 
President  Cleveland  in  connection  with  legislation  in  1893.  "  There  he 
stood,  unmindful  of  God,  man,  or  devil,  putting  aside  past  promises  and 
future  obligations  with  the  sublime  shamelessness  of  dire  need — stolid,  un- 
moral, buying  votes  with  offices  with  no  more  emotion  in  his  choice  of  pur- 
chasable swine  than  a  hog-buyer  in  the  pens.  The  public  service  was  filled 
with  incompetent  men,  recommended  by  purchasable  national  legislators, 
who  traded  their  votes  for  this  patronage." — William  Allen  White,  in  Mc- 
Clure's  Magazine,  January,  1902.  This  well  illustrates  the  menacing 
power  of  the  Presidency  when  the  vast  powers  of  the  office  are  in  the  hands 
of  a  man  who  will  consent  to  use  his  appointments  corruptly  in  order  to 
carry  through  a  legislative  policy.  "  In  this  instance  Mr.  Cleveland  did 
not  confine  his  interest  in  legislation  to  his  message,  which  was  his  constitu- 
tional limitation.  But  the  observer  of  events  in  Washington  saw  the  Exec- 
utive bring  to  bear  upon  the  legislative  branch  of  the  Government  an 
amount  of  personal  pressure  unequalled,  perhaps,  in  the  history  of  the 
Republic.  Even  now  one  can  recall  how  the  emissaries  of  the  President 
thronged  the  halls  of  Congress ;  how  strange  and  remarkable  conversions 
were  wrought  through  influences  which  emanated  from  the  White  House 
and  which  it  was  not  politic  to  withstand.  When  the  bill  wiping  the  silver- 
purchasing  law  from  the  statute  books  went  to  the  Senate,  it  did  not  com- 
mand a  majority  of  that  body  ;  but  during  the  three  months  of  acrimonious 
debate  the  power  of  the  Executive  was  exerted  to  such  an  extent  as  to  win 
the  support  of  those  Senators  whose  votes  were  needed  to  accomplish  the 
Presidential  purpose.  No  one  who  is  at  all  familiar  with  the  inner  history 
of  that  memorable  and  dramatic  struggle  will  dispute  these  statements." — 
"  The  Growing  Powers  of  the  President,"  H.  L.  West,  Forum,  March, 
1901. 


1 88  The  American  Republic 

conferred  upon  the  Senate  the  power  of  preventing  the 
removal  of  officers  without  the  consent  of  that  body.  It 
was  provided  that  during  a  recess  of  the  Senate  an  officer 
might  be  suspended,  but  this  was  to  be  done  only  in  case 
it  was  shown  by  evidence  satisfactory  to  the  President 
that  the  incumbent  was  guilty  of  misconduct  in  office,  or 
crime,  or  when  for  any  reason  he  should  become  in- 
capable or  legally  disqualified  to  perform  his  duties ;  and 
that  within  twenty  days  after  the  next  session  of  the 
Senate  the  President  should  report  to  that  body  such 
suspension,  with  the  evidence  and  reason  for  his  action  in 
the  case.  "If  the  Senate  concur  in  such  suspension  and 
consent  to  the  removal  of  such  officer  they  should  certify 
to  the  President  who  may  then  remove  such  officer  and 
appoint  another.  But  if  the  Senate  refuse  to  concur  in 
such  suspension,  such  officer  so  suspended  shall  forth- 
with resume  the  functions  of  his  office."  '  This  Act  was 
passed  with  the  design  of  forcing  an  unwelcome  Cabinet 
officer  upon  the  President,  and  in  other  respects  tying 
his  hands  in  the  administration  of  his  office.  The  Act 
was  probably  intended  to  be  personally  degrading  to 
President  Johnson  and  could  only  have  grown  out  of  the 
abnormal  excitement  created  by  the  dissensions  between 
the  two  departments  of  the  Government.2  It  presented 
the  question  whether  the  members  of  the  President's 
Cabinet,  his  trusted  associates  and  advisers,  owe  greater 
obedience  to  the  Senate  than  to  their  Executive  Chief  in 
affairs  relating  to  executive  functions. 

On  the  5th  of  April,  1869,  just  a  month  after  the  in- 
auguration of  President  Grant,  Congress  and  the  President 

then  being  in  party  harmony,  the  provisions  of 
office" '  the  Tenure  of  Office  Act  that  interfered  with 
Act  uncon-     j-^g  President's  power  in  removal  were  repealed. 

They  had  served  their  purpose  against  President 
Johnson.    This  prerogative  of  the  President  is  now  virtu- 
1  Act  of  1867.  s  Blaine,  vol.  ii.,  p.  274. 


The  Presidency  189 

ally  restored,  and  it  is  now  generally  held  by  publicists 
of  both  parties  that  the  Tenure  of  Office  Act  was  un- 
constitutional and  would  have  been  so  held  by  the  courts 
if  it  could  have  been  tested.'  In  1886,  what  was  left 
of  the  Tenure  of  Office  Act  was  repealed,  and,  as  Pres- 
ident Cleveland  says,  there  was 

"  thus  repealed  the  last  vestige  of  statutory  sanction  to  an  en- 
croachment upon  constitutional  executive  prerogatives.  In 
the  matter  of  appointment,  the  President  is  to  be  the  inde- 
pendent agent  of  the  people,  representing  a  co-ordinate  branch 
of  their  Government,  charged  under  his  oath  with  responsibili- 
ties which  he  ought  not  to  avoid  or  share ;  and  invested  with 
powers  not  to  be  surrendered,  but  to  be  used  under  the  guid- 
ance of  patriotic  intentions, — answerable  to  his  conscience  and 
to  the  people."  2 

The  Executive  Departments  have  been  created  from 
time  to  time  by  Acts  of  Congress.     The  heads  of  these 
departments  compose  the  Cabinet,  though  the 
"Cabinet"  is  not  recognized  in  the  Constitu-      Executive 
tion.     Onlv  three  departments  were  created  in  Departments. 

J  x  The  Cabinet. 

1789,  the  Department  of  State,  the  Department 
of  the  Treasury,  the  Department  of  War.  The  office  of 
Attorney-General  was  established  in  1789,  and  that  officer 
has  always  had  a  place  in  the  President's  Cabinet,  though 
the  separate  department  over  which  he  presides — the 
Department  of  Justice  —  was  not  erected  until  1870. 
The  Navy  Department  was  added  in  1798  ;  and  the  De- 
partment of  the  Post-Office  was  made  a  Cabinet  position 

1  See  Blaine's  Twenty  Years  of  Congress,  vol.  i.,  pp.  267-274.  See,  also, 
ex-President  Cleveland's  articles  on  "Executive  Independence,"  Atlantic 
Monthly,  June  and  July,  1901  ;  President  Johnson's  Message,  vetoing  the 
Tenure  of  Office  Act,  March  2,  1867  ;  Richardson's  Messages  and  Papers 
of  the  Presidents,  vol.  vi.,  p.  492;  the  Commentaries  of  Kent  and  Story 
are  quoted  by  President  Johnson  (the  message  was  probably  prepared  by 
Secretary  Seward),  and  the  case  is  cited  in  which  the  question  was  con- 
sidered by  the  Supreme  Court,  ex  parte  Hennen,  1839,  13  Peters,  139. 

8  Atlantic  Monthly,  July,  1900. 


190  The  American  Republic 

in  1829,  though  the  office  itself  had  existed  from  colonial 
times,  Franklin  having  distinguished  the  office  by  his 
service  in  it.  The  Interior  Department  was  added  in 
1849,  and  the  Department  of  Agriculture  in  1889.  The 
Department  of  Commerce  and  Labor  is  now  (1903)  about 
to  be  added  to  the  Cabinet  offices,  and  it  has  been  fre- 
quently proposed  to  bring  the  Bureau  of  Education  into 
a  Cabinet  dignity. 

' '  The  president  may  require  the  opinion  in  writing  of  the 
Th  c  t"  principal  officer  in  each  of  the  Executive  depart- 
tution  and  ments  upon  any  subject  relating  to  the  duties  of 
the  cabinet.    their  respective  offices." 

This  is  all  that  the  Constitution  says  anywhere  about 
any  such  body  as  a  Cabinet.  It  is  evident  that  the  Con- 
stitutional Convention  did  not  intend  to  constitute  a 
council  like  the  English  Privy  Council.  All  that  was 
contemplated  was  that  the  President  should  consult  the 
heads  of  the  several  departments  separately  about  the 
duties  of  their  respective  offices,  not  that  he  should  as- 
semble them  together  for  consultation  and  advice  on  the 
general  policy  of  the  administration.  He  might  follow 
this  advice  or  not,  as  he  chose ;  and  he  could  proceed  with 
the  most  important  presidential  matters  without  asking 
it,  as  John  Adams  did  in  our  French  relations  in  1800, 
and  Jefferson  in  the  Louisiana  Treaty  in  1803,  and  in  the 
Monroe-Pinkney  Treaty  of  1806.  Washington  generally 
pursued  the  practice  of  consulting  his  Cabinet  members 
individually.  Before  making  up  his  mind  what  policy  he 
should  pursue,  he  asked  the  opinions  of  his  Secretaries 
in  writing.  Some  of  our  most  valuable  historical  State 
papers  came  to  us  in  this  way, — in  the  written  opinions 
of  Jefferson  and  Hamilton  prepared  at  Washington's  re- 
quest.1    The  Cabinet  as  we  see  it  to-day  is  the  product 

1  Note  especially  the  opinions  on  our  neutrality  policy  and  the  constitu- 
tionality of  the  First  United  States  Bank. 


The  Presidency  191 

of  evolution.  Whatever  law  regulates  its  proceedings 
and  its  relations  to  the  President  and  to  Congress  is  the 
law  of  the  unwritten  constitution.  Under  John  Adams 
some  of  the  Secretaries  presumed  to  consider  themselves 
as  co-ordinate  integral  parts  of  the  Executive  Department, 
and  as  not  answerable  to  the  President.  Pickering,  Ad- 
ams's Secretary  of  State,  went  so  far  as  to  act  without 
regard  to  the  harmony  of  the  Administration  as  a  whole, 
and  he  even  attempted  to  thwart  the  publicly  announced 
policy  of  his  chief.  Though  Congress  in  creating  the  de- 
partments had  ruled  in  favor  of  the  President's  power 
to  remove  a  Cabinet  officer  without  the  consent  of  the 
Senate,  Adams's  removal  of  Pickering  for  thus  attempt- 
ing to  create  this  impossible  situation  caused  considera- 
ble political  friction  and  opposition.  Jefferson  dominated 
his  Cabinet,  but  he  did  it  more  by  his  personal  influence 
than  by  his  official  power. 

"When  a  question  occurred  of  sufficient  magnitude  to  re- 
quire the  opinions  of  all  the  heads  of  departments,  he  called 
them  together,  had  the  subject  discussed,  and  a  vote  taken,  in 
which  he  counted  himself  as  but  one.  But  he  always  seems  to 
have  considered  that  he  had  the  power  to  decide  against  the 
opinion  of  his  Cabinet.  .  .  .  When  there  were  differences 
of  opinion,  he  aimed  to  produce  a  unanimous  result  by  dis- 
cussion, and  almost  always  succeeded.  But  he  admits  that 
this  practice  made  the  Executive,  in  fact,  a  directory."  ' 

Some  Presidents  have  been  more  influenced  by  their 
Cabinets  than  others.  President  Buchanan  was  much 
worried  by  his  Cabinet  because  he  was  not  strong  enough 
to  insist  upon  his  own  will.  Lincoln  decided  upon  his 
Emancipation  Proclamation,  and  he  submitted  it  to  his 
Cabinet  merely  for  suggestion.9     In  departmental  matters 

1  G.  T.  Curtis,  cited  in  Walker's  Making  of  the  Nation,  p.  91. 

2  Stevens's  Sources  of  the  Constitution,  p.  168,  notes  on  a  conversation 
with  President  Hayes. 


192  The  American  Republic 

the  President  gives  a  wide  latitude  to  the  Secretary,  but 
occasionally  he  may  overrule  the  Secretary. 

The  head  of  a   department   is   not   merely  the  active 

administrator  of   the  daily   business   of  his  department. 

This  will  be  attended  to  by  the  Assistant  Secre- 

Duties  of  J  .   . 

the  cabinet    taries  and  by  the  heads  of  bureaus  and  divisions, 
secretary.      The  Secretary  must  know  his  department,  its 
needs,  and  its  forces,  that  it  is  doing  well,  and  that  his 
plans  and  those  of  his  chief  are  being  carried  out.      But 
the  Secretary's  chief  function  is  to  act  as  adviser  of  the 
President  not  only  as  to  the  matters  of  his  department, 
but  as  to  the  general  welfare  and  policy  of  the  country. 
He  should,  therefore,  be  in  harmony  with  the  policy  of 
the  President.      He  should  be  of  the  President's  party 
and  of  the  President's  wing  of  the  party,  and  in  friendly 
personal  relations  with  the  President.     Washington  at- 
tempted to  bring  into  his  Cabinet  men  of  radically  differ- 
ent political  opinions.     Jefferson  and  Hamilton  did  not 
naturally  belong  to  the  same  official  family.     This  effort 
of  Washington  to  bring  them  into  the  same  Administra- 
tion and  to  govern  without  reference  to  party  came  from 
the  fact  that  he  deplored  the  party  spirit  as  dangerous  to 
the  country's  interests,  and  his  conception  of  the  Presi- 
dency was  that,   like  the  English   Crown,   it   should   be 
above  party,  fair  to  all,  partial  to  none.     But  our  party 
history  was  destined  to  make  the  Presidency  an  office  for 
party  leadership,  and  since  the  first  distinctive  party  vic- 
tory  under  Jefferson,  in  1800,  the  President's  Cabinet 
officers  have  been  in  party  harmony  with  the  President 
and  with  one  another.     It  is  now  one  of  the  well-estab- 
lished understandings  of  the  Constitution  that  if  a  Cabinet 
member  cannot  agree  with  the  President  and  loyally  and 
harmoniously  carry  out  the  President's  policy,  he  should 
resign  or  the  President  should  have  the  right  to  remove 
him.    The  Cabinet  is  the  President's  official  family,  and  in 
general  public  policy  they  are  all  expected  to  stand  to- 


The  Presidency  193 

gether.  In  1841,  Mr. Tyler's  Cabinet  resigned  because  they 
felt  that  the  President  was  abandoning  his  party  principles. 
They  would  no  longer  be  identified  with  an  administra- 
tion to  which  they  were  really  opposed,  and  they  wished 
to  rebuke  the  President.1  In  1866,  disaffection  arose  in 
President  Johnson's  Cabinet.  Mr.  Speed,  the  Attorney- 
General,  Mr.  Dennison,  the  Postmaster-General,  and  Mr. 
Harlan,  the  Secretary  of  the  Interior,  all  resigned  because 
they  thought  it  improper  to  retain  office  under  a  Presi- 
dent with  whom  they  differed  so  widely  on  the  question 
of  Reconstruction.  Mr.  Stanton,  the  Secretary  of  War, 
though  likewise  opposing  President  Johnson,  remained  in 
the  Cabinet.  His  purpose  was  to  act  as  the  minister  of 
Congress,  to  defeat  the  President's  policy,  and  protect  the 
country  against  him.  The  majority  in  Congress  sustained 
Stanton,  and  by  the  Tenure  of  Office  Act  prevented 
the  President  from  removing  him.  They  transferred 
many  military  functions  of  the  President  to  the  Secretary 
of  War,  and,  in  effect,  deprived  the  President  of  his 
constitutional  prerogatives.  Not  to  speak  of  Stanton's  in- 
delicacy in  seeking  to  remain  with  a  President  not  want- 
ing him,  this  would  have  been  to  change  our  system  from 
the  Presidential  system,  in  which  the  minister  is  responsi- 
ble to  the  President,  to  the  Parliamentary  system,  in 
which  the  minister  would  be  responsible  to  Congress. 

"  The  President,  not  the  Cabinet,  is  responsible  for  all  the 
measures  of  the  Administration,  and  whatever  is  done  by  one 
of  the  heads  of  department  is  considered  as  done  by  the  Presi- 
dent, through  the  proper  executive  agent.  In  this  fact  con- 
sists one  important  difference  between  the  Executive  (King) 
of  Great  Britain  and  of  the  United  States;  the  acts  of  the 
former  being  considered  as  those  of  his  advisers  who  alone  are 
responsible  therefor,    while    the  acts  of  the  advisers  of  the 

1  Mr.  Webster  retained  his  place  in  order  to  complete  important  negotia- 
tions,—the  Webster- Ashburton  Treaty,— though  he  was  in  party  harmony 
-with  his  colleagues  and  condemned  Tyler's  party  course. 
•3 


194  The  American  Republic 

American  Executive  are  considered  as  directed  and  controlled 
by  him."  ' 

REFERENCES  ON  THE  TREATY-MAKING  POWER 

1.  Gallatin's  speech  on  Jay's  Treaty,  March,  1796. 

2.  Henry  Adams,  Life  of  Gallatin. 

3.  American   Orations,  vol.  i.,   Speech  of  Gallatin,   and  the  Historical 

Note  on  Jay's  Treaty. 

4.  Writings  of  Washington,  vol.  xiii.,  pp.   1 78-179,  reply  to  the  request 

for  the  papers  and  instructions  to  Jay. 

5.  Works   of  Jefferson,   vol.   iv.  (1869),   letters  to  Giles,  Monroe,   and 

Madison,  pp.  132-135. 

6.  Madison's  Works,  vol.  i.,  p.  524,  letter  to  Pendleton. 

7.  Jay,  in  No.  64  of  the  Federalist. 

8.  Blaine's  Twenty  Years  in  Congress,  vol.  ii.,  pp.  333  et  sea.,  on  "  The 

Purchase  of  Alaska." 

9.  "  The  Treaty-Making  Power  under  the  Constitution,"  by  Simon  G. 

Croswell,  American  Law  Review,  vol.  xx.,  p.  513. 

10.  The  Nation,  vol.  xxxix.,  p.  516. 

11.  Speeches  of  Gen.  Banks  and  Hon.  C.  C.  Washburn  on  "The  Purchase 

of  Alaska,"  Congressional  Globe,  vol.  lxxxii.,  appendix,  p.  393. 

12.  Boutwell's  Constitution  of  the  United  States  at  the  End  of  the  First 

Century. 

13.  Treaty-Making  Power.     See  "A  Mistake  of  the  Fathers,"  Harper's 

Weekly,  June  22,  1901. 

14.  The  Treaty-Making  Power  of  the  United  States.     A  Treatise.     Two 

vols.  By  Charles  Henry  Butler.  This  work  treats  of  all 
phases  of  the  treaty  power — historical,  legal,  and  constitutional. 

15.  Von  Holst,  Constitutional  Law. 

16.  Cooley,  Constitutional  Law. 

REFERENCES  ON  THE  WAR   POWERS  OF  THE   PRESIDENT 

1.  Curtis,  Benj.  R.,  pamphlet,  written  in  October,   1862.     Found  in  G. 

T.  Curtis's  Constitutional  History  of  the  United  States,  vol.  ii.,  ap- 
pendix, title,  "Executive  Power." 

2.  North  American  Review,  vol.  cxxx.,  Feb.,   1880,  James  C.  Welling, 

on  "The  Emancipation  Proclamation";  vol.  cxxxi.,  Dec,  1880,  A. 
A.  Ferris,  on  "The  Validity  of  the  Emancipation  Edict";  vol. 
cxxxi.,  Nov.,  1880,  W.  B.  Lawrence,  "  The  Monarchical  Principle 
in  our  Constitution." 

1  Cooley's  Blackstone,  Commentaries,  book  i.,  p.  231,  n.  6,  cited  by 
Stevens's  Sources,  p.  171.  "On  the  President's  Cabinet."  See  Harper's 
Weekly,  Oct.  12,  1901. 


The  Presidency  195 

3.  Fisher,  Sidney  George,  The  Trial  of  the  Constitution  (1862),  chap. 

iii.,  "Executive  Power." 

4.  Von  Holst,   Constitutional  Law  of  the   United  States,    translated  by 

Mason,  pp.  190-198. 

5.  Sumner,  Charles,  Works,  vol.  vii.,  pp.  138-140. 

6.  Rhodes,  History  of  the  United  States,  vol.  iii.,  pp.  394-395,  437-442, 

553-558  ;  vol.  iv.,  pp.  60-75  (confiscation  act),  157-163  (emanci- 
pation), 165-172  (arbitrary  arrests),  212-215  (emancipation),  223- 
239,  245-253  (arbitrary  powers).  See  references  on  these  pages  in 
Rhodes. 

7.  Winthrop's  Military  Law  and  Precedents,  ed.  of  1895. 

8.  Thayer's  Cases  in  Constitutional  Law,  ex  parte  Merryman,  ex  parte 

Milligan. 


CHAPTER   IV 

THE   SENATE 

THE  present  Senate  of  the  United  States,  if  all  elec- 
tions were  complete,  would  consist  of  ninety  mem- 
Composition  bers,  two  members  from  each  of  the  forty-five 
of  the  senate.  States.1  By  the  Constitution  which  created 
the  Senate,  the  Senators  are  chosen  by  the  legislatures  of 
Method  of  their  respective  States  for  a  term  of  six  years, 
Election.        anci  each  Senator  has  one  vote. 

A  Senator  is  required : 
Qualifications       To  be  thirty  years  of  age ; 
of  senators.         7/0  have  been   nine  years  a  citizen  of  the 
United  States ;  and 

To  be,  at  the  time  of  his  election,  an  inhabitant  of  that 
State  for  which  he  is  chosen. 

No  Senator  can  hold  any  other  office  under  the  United 
States. 

The  Vice-President  of  the  United  States  is  the  presid- 
ing officer  of  the  Senate.  He  votes  only  in  case  of  a  tie. 
The  The  Vice-President,  unlike  the  Speaker  of  the 

President  of  House,  is  not  a  member  of  the  body  over  which 
Right  to  he  presides.  He  can  therefore  claim  no  right 
vote.  |-0  vote,  except  in  case  of  a  tie.     The  Senate 

may  choose,  with  its  other  officers,  a  President  pro  tem- 
pore, who  presides  in  the  absence  of  the  Vice-President,  or 

1  The  English  House  of  Lords  has  about  592  members  ;  the  French 
Senate,  300  ;  the  German  Bundesrath,  58.  The  latter  body  represents  the 
German  states. 

196 


The  Senate  197 

when  the  latter  shall  exercise  the  office  of  President  of  the 
United  States.  The  President  pro  tempore,  as  a  member 
of  the  Senate,  may  claim  a  vote  on  any  question  The 

at  issue,  but,  having  voted  once,  he  cannot,  of        President 

r         ,  •  a  1      pro  Tempore. 

course,  vote  again  even  in  case  of  a  tie.     Al- 
ways in  a  tie  vote  the  pending  measure  is  lost.1 

At  the  first  organization  of  the  Senate  its  members  were 
divided,  according  to  the  Constitution,  into  three  classes, 
— the  seats  of  the  Senators  of  the  first  class  to  classes  of 
be  vacated  at  the  expiration  of  the  second  year,  Senators. 
of  the  second  class  at  the  expiration  of  the  fourth  year, 
of  the  .third  class  at  the  expiration  of  the  sixth  year. 
Senators  from  a  new  State  are  assigned  by  lot  to  two  of 
these  classes.  One  of  the  newly  elected  Senators  may 
fall  into  a  class  whose  term  expires  in  two  years,  the 
other  into  a  class  whose  term  expires  in  four  years,  or  in 
six.  By  this  provision  the  two  Senatorships  from  the 
same  State  can  never  be  vacant  at  the  same  time.  So 
when  Senators  are  elected  from  a  new  State  one  of  them 
may  serve  for  only  two  years  and  the  other  for  four. 
However,  such  Senators  are  usually  re-elected  by  their 
States  for  a  full  term. 

The  Seriate  is  called  a  continuous,  or  permanent  body, 
because  it  has  in  every  Congress  two-thirds  of  ^  s^^ 
the  same  members  as  in  the  Congress  just  pre-      Permanent 
ceding.     The  body  does  not  change  all  at  once,  or  Conti™ 
as  do   assemblies  created  by  a  single  popular 

1  In  1868,  while  the  Senate  was  sitting  as  a  court  in  the  impeachment  trial 
of  President  Johnson,  Senator  Wade,  of  Ohio,  was  President  pro  tempore 
of  the  Senate.  His  right  to  vote  on  the  charges  of  impeachment  was  dis- 
puted, although  the  Chief  Justice  was  presiding,  on  the  ground  that  Wade 
was  directly  personally  interested  in  the  result  of  the  vote,  since  if  John- 
son had  been  removed  Wade  would  have  become  acting  President.  Wade 
based  his  right  to  vote  on  the  constitutional  provision  that  no  State  shall 
be  deprived  of  its  equal  representation  in  the  Senate  except  by  its  own  con- 
sent, and  if  his  right  to  vote  were  denied  Ohio  would  have  but  one  vote  in 
the  Senate.  By  the  decision  of  the  Senate,  Wade  was  allowed  to  vote.  He 
voted  for  the  impeachment  and  removal  of  the  President. 


i98  The  American  Republic 

election,  but  undergoes  an  "unceasing  process  of  gradual 
renewal."  "Always  changing,  it  is  forever  the  same." 
This  permanent  character  qualifies  the  Senate  to  help 
conduct  the  foreign  policy  of  the  nation  and  adds  to  the 
traditional  dignity  of  the  Senate.1 

A  vacancy  from  a  State,  occurring  by  death  or  resigna- 
tion during  a  recess  of  the  State  legislature,  is  filled  by 
vacancies  in    temporary  appointment  by  the  State  governor 
the  senate.      until  the  next  meeting  of  the  legislature,  which 
ow  shall  then  fill  the  vacancy.     It  has  been  recently 

determined,  however,  that  the  Senate,  which  is  the  judge 
of  the  election  of  its  own  members,  will  not  recognize 
the  appointment  by  a  governor  in  case  an  intervening 
legislature  fail  to  elect.  The  failure  of  a  State  to  elect, 
when  opportunity  is  offered  to  its  legislature,  is  con- 
strued as  equivalent  to  the  State's  consent  that  it  be 
deprived  of  equal  representation  in  the  Senate.  The 
governor  may  appoint  only  to  vacancies  "which  hap- 
pen during  the  recess  of  the  legislature."  "Happen" 
is  here  interpreted  to  refer  only  to  vacancies  created 
by  accident,  not  to  those  created  by  law.  It  is  the 
duty  of  a  State  to  provide  for  election  in  advance  of  a 
legal  vacancy.  Vacancies  may  "  happen  "  by  death, 
resignation,  expulsion,  and  by  accepting  an  incompatible 
office.  But  the  governor  may  not  fill  any  vacancy 
which  he  finds  existing  when  the  legislature  is  in  recess. 
In  that  case,  a  senatorial  candidate  who  has  the  favor 
of  the  governor  would  need  to  have  only  enough  sup- 
porters in  the  legislature  to  prevent  an  election.  If 
the  legislature  be  forced  to  adjourn  without  electing  the 
Senator,  the  governor  could  take  the  selection  into  his 
own  hands.4 

1  Bryce,  vol.  i.,  p.  103. 

*  .See  Foster  on  the  Constitution.  Case  of  Lee  Mantle  of  Montana, 
Aug.  23,  1893,  Congressional  Globe.  Speech  of  Senator  Burrows  of  Mich- 
igan, in  the  Quay  case,  April  14,  1900. 


The  Senate  199 

Such  are  the  more  or  less  familiar  constitutional  pro- 
visions touching  the  composition  of  the  Senate. 

The  origin  of  the  Senate  is  of  historical  in-  origin  of 
terest  and  of  political  significance.  the  Senate- 

As  is  well  known,  the  so-called  Congress  of  the  old 
Confederation  consisted  of  but  a  single  house.  This 
body,  as  we  have  seen  in  our  notice  of  the  old  Confedera- 
tion, was  more  of  a  diplomatic  body  than  a  legislature. 
We  have  seen  that,  in  the  old  Congress,  questions  were 
determined   by   the  voices  of  States,   and  the 

J  ••■li_  Congress 

voice  of  any  one  State  was  equal  in  weight  to  the  0f  the  ow  Con- 
voice  of  any  other.  The  members  were  State  A™*££™ 
delegates, — they  were  elected  by  States,  were  rather  than  a 
paid  by  the  States,  and  could  be  recalled  by  Law_M^dnyg 
the  States.  The  Congress  was  to  consider  cer- 
tain definite  subjects,  which  the  States,  through  their 
delegates,  had  assigned  to  it  for  consideration.  The  old 
Congress  was  lacking  in  the  two  prime  requisites  of  a 
governing  body :  it  could  not  enforce  a  law  nor  collect  a 
tax.  There  is  a  political  absurdity  involved  in  the  asser- 
tion which  we  sometimes  hear,  that  the  old  Confederation 
could  make  laws  but  could  not  enforce  them ;  for  a  so- 
called  government  which  has  no  law-enforcing  power  has 
really  no  law-making  power.  What  such  a  body  makes 
may  be  a  proclamation,  or  resolution,  or  recommenda- 
tion, but  not  a  law.  It  is  evident  that  the  men  who 
framed  the  Confederation  did  not  look  upon  its  Congress 
as  a  law-making  body,  except  to  a  very  limited  extent, 
and  that  strictly  specified.  If  a  law-making  body  as  part 
of  a  real  government  had  been  intended  by  our  fathers 
when  their  States  formed  a  league  in  1781,  they  would 
doubtless  have  formed  their  Congress  after  the  pattern  of 
every  government,  save  two,  of  which  they  had  any 
working  experimental  knowledge.  That  is,  they  would 
have  given  their  legislature  the  bicameral,  not  the  uni- 
cameral, form.     The  bicameral  form  of  legislature  is  the 


200  The  American  Republic 

form  of  two  houses.  All  of  the  original  State  legisla- 
tures, except  Pennsylvania  and  Georgia,  had  the  bicam- 
eral system,  and  all  the  later  States,  except 
Bicameral  Vermont  in  its  early  history,  have  followed  this 
System.  pattern.      The  advantage  of    two  houses  was 

thought  to  be  that  one  should  act  as  a  check  on  the  haste 
and  error  of  the  other.  In  several  of  the  Colonies  the  up- 
per houses  were  only  small  executive  bodies,  appointed  to 
assist  the  governor,  with  power  to  check  legislation  by  a 
suspensive  veto.  But  after  the  Revolution  these  soon 
came  to  be  co-ordinate  houses  of  legislation.  In  America 
the  need  of  two  chambers  came  to  be  deemed  "an  axiom 
in  political  science,  on  the  belief  that  the  innate  tendency 
of  an  assembly  to  become  hasty,  tyrannical,  and  corrupt 
needs  to  be  checked  by  the  coexistence  of  another  house 
of  equal  authority."  J 

This  theory  was  pretty  deeply  imbedded  in  the  minds 
of  the  framers  of  our  Constitution.  So  when  they  came 
together  in  the  Constitutional  Convention  of  1787,  to 
provide  for  a  new  Congress — for  a  really  effective  govern- 
ment— the  first  two  propositions  of  importance  coming 
before  them  were : 

(1)  That  the  right  of  voting  in  the  new  national  legis- 
lature ought  to  be  proportional  either  to  wealth  or  to 
inhabitants ;  that  it  ought  not  to  be,  as  it  had  been,  one 
State,  one  vote; 

(2)  That  this  legislature  should  consist  of  two  houses. 
The  proposition  for  a  bicameral,  or  a  two-house,  legis- 
lature was  agreed  to  on  the  second  day  of  the  Convention 

1  The  Constitution  of  Pennsylvania  of  1786,  that  of  Georgia  of  1777,  and 
the  two  Constitutions  of  Vermont,  1786  and  1793,  all  provided  for  only- 
one  house  in  the  Legislature.  Each  provided  for  an  Executive  Council 
with  power  of  checking  or  delaying  the  acts  of  the  law-making  body. 
Georgia  created  two  houses  in  1789,  Pennsylvania  in  1790,  and  Vermont 
in  1839.  On  the  division  of  the  legislature,  see  Bryce,  vol.  i.,  p.  480; 
Kent's  Commentaries  on  the  American  Constitution,  vol.  i.,  pp.  208-210; 
Story's  Commentaries,  pp.  548-590. 


The  Senate  201 

without  discussion  or  dissent,  except  that  of  Pennsylvania, 
"given  probably  from  complaisance  to  Dr.  Franklin,  who 
was  understood  to  be  partial  to  a  single  house  of  legis- 
lation." '  The  proposition  for  an  upper  house  was  never 
again  brought  into  question  in  the  Convention.  A  second 
chamber  was  a  part  of  their  ancestral  inheritance  from 
England,  and  a  part  of  the  colonial  governmental  form. 
Mason  of  Virginia  said  :  "In  two  respects  the  mind  of  the 
people  of  America  is  well  settled  :  First,  in  an  attachment 
to  republican  government ;  secondly,  in  an  attachment  to 
more  than  one  branch  in  the  legislature."  '  The  bi- 
cameral system,"  says  Lieber,  "accompanies  the  Anglican 
race  like  the  common  law."2  The  unicameral  system 
was  common  in  France,  but  not  in  England.     At   that 

1  Madison's  Journal  of  the  Debates,  p.  78,  Scott  edition. 

2  Historically,  the  idea  of  two  chambers  in  the  legislature  was  of  feudal 
origin  ;  it  grew  out  of  certain  social  orders  and  the  struggles  between  these 
orders.  Through  this  idea  the  nobility,  the  Church,  and  the  gentry  each 
sought  to  preserve  and  advance  its  separate  power  and  privileges  in  the 
State,  and  each  of  these  estates  had  its  chamber.  In  England  these  three 
merged  into  two,  the  higher  clergy  merging  with  the  Lords,  the  country 
gentry  with  the  Commons.  But  in  the  State  legislatures  of  America  the 
two  chambers  represent  the  same  constituencies  and  protect  the  same 
interests.  In  our  earlier  history,  in  many  of  the  Colonies,  and  later  in 
some  of  the  States,  one  branch  of  the  Government  was  intended  more 
especially  to  be  the  guardian  of  property,  and  property  qualifications  were 
required  for  membership  in  the  Senate  in  several  of  the  States.  (See  Fed- 
eralist, No.  54,  p.  364,  Ford's  edition,  also  Webster's  speech  on  "The 
Basis  of  the  Senate  in  Massachusetts,"  Works,  vol.  iii.,  p.  8.)  But  this 
use  of  an  upper  chamber  soon  disappeared.  It  seemed  that  the  use  of  the 
double  system  had  ceased  to  exist  when  the  distinctions  between  the  con- 
stituencies to  be  represented  had  been  swept  away.  For  these  reasons,  and 
under  these  changing  conditions,  publicists  like  Franklin  and  Turgot 
favored  a  single  chamber.  The  only  basis  of  representation  in  our  State 
Senates  different  from  that  of  the  lower  Houses  is  a  larger  territory  and  a 
larger  group  of  population.  For  the  United  States  Senate  the  States 
furnished  a  ready-made  basis  of  representation.  There  is  no  essential 
difference  between  our  national  Senate  and  House  in  composition,  charac- 
ter, or  purpose.  The  Senate  represents  the  people  in  States,  and  is,  like 
the  House,  dependent  on  public  opinion.  See  the  American  Law  Review, 
October,  1869,  vol.  iv. 


202  The  American  Republic 

time  one  system  might  have  been  called  French,  the  other 
English.  Our  Senate,  then,  came  into  existence  because 
of  the  preference  of  the  colonial  statesmen  for  the  Eng- 
lish system,  the  only  system  which  they  had  known  in 
practice. 

It  is  often  supposed  that  the  Senate  had  its  origin  in 

the  necessity  of  providing  for  equal  representation  of  the 

States,  in  order  that  the  differences  between 

sentation  and  the  large  and  the  small  States  might  be  com- 

the  origin  of  promised  and   reconciled.      "The   division  of 

the  Senate.  .  , .  . 

Congress  into  two  houses  supplied  a  means  ot 
settling  the  dispute  between  the  large  and  the  small 
States. ' '  '  This  division  may  have  supplied  such  a  means, 
but  it  was  not  made  for  that  purpose.  The  bicameral 
system  was  determined  on  without  reference  to  the  dis- 
pute over  equal  representation.  Only  the  purely  Con- 
federate party,  those  who  wished  to  retain  the  form  of 
the  old  Confederation,  favored  the  retention  of  only  one 
House  of  Congress,  and  that  because  they  did  not  wish 
to  make  Congress  a  law-making  body,  with  power  of 
legislation  for  individuals.  The  form  of  the  Senate  was 
modified  by  the  necessity  of  conciliating  the  small  States; 
but  it  is  evident,  as  we  have  shown,  from  the  history  of 
the  Convention,  that  we  should  have  had  the  Senate  in 
some  form  even  if  there  had  been  no  conflict  between  the 
large  and  the  small  States.  It  was  found  to  be  necessary 
to  provide  in  the  Senate  for  a  representation  of  statehood, 
in  order  to  enable  large  and  small  States  to  come  together 
under  a  common  Constitution ;  but  this  was  done  after 
the  Senate  itself  had  been  fully  determined  upon,  and  it 
is  important  only  as  affecting  the  form  of  the  Senate. 
The  representation  of  statehood  is  neither  the  originative 
nor  the  determinative  principle  of  the  Senate.  That  is, 
it  did  not  grow  out  of  that  principle,  nor  does  the  Senate 
determine  questions  upon  that  principle.    It  is  not  required 

1  Bryce,  vol.  i.,  p.  184. 


The  Senate  203 

in  the  Senate,  as  it  was  under  the  old  Confederation,  that 
a  majority  of  the  States  shall  vote  for  a  measure  before 
it  can  be  carried.  Each  State  has  two  Senators,  but  in 
making  decisions  the  Senate  does  not  vote  by  States.  A 
Senator's  vote  is  his  own,  not  his  State's,  and  the  two 
Senators  may  be  members  of  different  political  parties 
and  vote  on  different  sides  of  the  same  question.  Under 
the  purely  federal  plan  of  voting,  the  two  Senators  would 
cast  a  single  vote,  and  unless  they  could  agree  the  State 
would  lose  its  vote  and  have  no  voice  in  the  decision.1 

But,  after  all,  the  struggle  for  equal  representation  of 
the  States  determined  the  form  of  the  Senate,  and  in 
such  an  important  particular  that  it  is  often  said  that  the 
Senate  itself  is  the  result  of  the  compromise  which  grew 
out  of  this  struggle.  A  knowledge  of  this  compromise 
and  of  the  struggle  which  led  to  it  is  essential  to  an  under- 
standing of  the  way  in  which  the  Senate  became  what  it  is. 

The  most  hotly  contested  question  in  the  Constitu- 
tional Convention  was  whether  the  States  should  have 
equal  or  proportional  representation  in  the  new  The  Contest 
Congress  to  be  created.     The  essential  point  between 

with  the  national  party,  chiefly  representing  vf^\lllx 
the  large  States,  was  that  the  States  should  Represen- 
vote  in  some  equitable  proportion.  The  Con- 
federate, or  Small-State  party,  insisted  on  retaining  the 
plan  of  the  old  Confederation, — one  State,  one  vote. 
Read  of  Delaware  said  that  if  the  rule  of  voting  were 
changed  it  might  become  the  duty  of  his  State  to  retire. 
Paterson  of  New  Jersey  said : 

"  I  consider  the  proposition  for  proportional  representation 
as  striking  at  the  existence  of  the  lesser  States.  I  deny  power 
to  the  Convention,  from  its  nature,  powers,  and  structure,  to 

1  Of  course,  if  a  majority  of  the  States  should  be  required  to  carry  a 
measure,  a  State  whose  vote  was  equally  divided  would  count  in  the 
negative. 


204  The  American  Republic 

make  any  change  in  the  rule  of  suffrage;  the  idea  of  a  national 
government  as  contradistinguished  from  a  federal  one,  has 
not  entered  into  the  mind  of  the  people.  We  must  retain 
the  federal  [confederate]  form,  and  a  confederation  supposes 
sovereignty  in  the  members  composing  it,  and  sovereignty 
supposes  equality.  If  we  are  to  be  considered  as  a  nation,  all 
State  distinctions  must  be  abolished,  the  whole  must  be 
thrown  into  hotchpot,  and  when  an  equal  division  is  made 
then  there  may  be  fairly  an  equality  of  representation.  Vir- 
ginia, Massachusetts,  and  Pennsylvania  are  the  three  large 
States;  the  other  ten  are  small  ones.  I  say  that  the  small 
States  will  never  agree  to  such  disparity  in  suffrage  as  to  allow 
Delaware  one  vote  to  Virginia's  sixteen,  which  would  be  the 
proportion  under  the  proposed  plan. 

"  Mr.  Wilson  (of  Pennsylvania)  has  hinted  that  the  large 
States  would  find  it  necessary  to  confederate  among  them- 
selves if  the  others  refused  to  concur.  Let  them  unite,  if  they 
please,  but  let  them  remember  that  they  have  no  authority  to 
compel  others  to  unite.  New  Jersey  will  never  confederate  on 
the  plan  before  this  Committee.  She  would  be  swallowed  up. 
I  would  rather  submit  to  a  monarch,  to  a  despot,  than  to 
such  a  fate.  I  shall  not  only  oppose  the  plan  here,  but  on  my 
return  home  I  shall  do  everything  in  my  power  to  defeat  it. ' ' 

Mr.  Wilson  of  Pennsylvania  answered  Mr.  Paterson. 
He  said: 

"  I  hope  that  some  of  the  States,  at  least,  will  unite  for  their 
safety.  Proportional  representation  is  fundamental.  As  all 
authority  is  derived  from  the  people,  equal  numbers  of  people 
ought  to  have  an  equal  number  of  representatives,  and  differ- 
ent numbers  of  people  different  numbers  of  representatives. 
Mr.  Paterson  has  admitted  that  people,  not  property,  are  the 
true  measure  of  suffrage.  Are  not  the  citizens  of  Pennsyl- 
vania equal  to  those  of  New  Jersey?  Should  it  require  150  of 
the  former  to  equal  50  of  the  latter?  Representatives  should 
hold  the  same  proportion  to  each  other  as  their  respective  con- 
stituents do.       If  the  small  States  will  not  federate  on  this 


The  Senate  205 

plan,  Pennsylvania  will  not  federate  on  any  other.  If  New 
Jersey  will  not  part  with  her  sovereignty  it  is  vain  to  talk  of 
government."  ' 

These  extracts  show  the  temper  of  the  debate  and  its 
significance.  Dr.  Franklin  had  to  remind  the  members 
that  they  were  there  to  consult,  not  to  contend,  with  each 
other;  and  that  declarations  of  fixed  opinion,  and  of  de- 
termined resolution  never  to  change  it,  neither  enlighten 
nor  convince  men.  Light,  not  heat,  was  what  was  wanted, 
where  harmony  and  union  were  extremely  necessary  to  a 
common  agreement. 

After  this  heated  debate  the  Convention  agreed  by  a 
vote  of  seven  States  against  three  3  that  the  rule  of  suffrage 
in  the  first  branch  of  the  national  legislature  should  not 
be  according  to  the  old  rule,  but  "according  to  some 
equitable  ratio."  The  three-fifths  basis  was  soon  agreed 
to  as  an  "  equitable  ratio, ' '  using  the  proposed  amendment 
to  the  Articles  of  Confederation,  submitted  with  the 
revenue  measure  of  April,  1783,  as  a  precedent.3  Then 
it  was  voted  that  the  rule  of  voting  in  the  Senate  should 
be  the  same  as  in  the  House.  This  seemed  to  conserva- 
tive members  to  be  pushing  things  too  far;  it  appeared 

1  Madison's  Journal. 

3  The  vote  of  Maryland  was  divided.  New  Hampshire  and  Rhode 
Island  were  not  represented  in  the  Convention. 

3  By  the  Articles  of  Confederation  the  States  were  to  contribute  toward 
the  expenses  of  the  General  Government  in  proportion  to  the  value  of  their 
lands  and  improvements,  assessed  by  the  several  States.  This  was  never 
satisfactory,  and  was  agreed  to  in  Congress,  in  1777,  because  there  were  no 
data  at  hand  for  determining  a  better  plan.  In  April,  1783,  it  was  pro- 
posed by  Congress  that  the  States  permit  Congress  to  collect  a  small  uni- 
form revenue,  under  restrictions  and  regulations  to  be  agreed  to  by  the 
States.  With  this  revenue  proposition  an  amendment  to  the  Articles  was 
proposed  which  provided  that  payments  should  be  made  to  the  common 
treasury  by  the  States  "  in  proportion  to  the  whole  number  of  white  and 
other  free  citizens  and  inhabitants  of  every  age,  sex,  and  condition,  includ- 
ing those  bound  to  servitude  for  a  number  of  years  and  three  fifths  of  all 
other  persons,  except  Indians  not  taxed."     This  language  is  identical  with 


206  The  American  Republic 

that  the  decision  might  result  in  the  dissolution  of  the 
Convention.  The  members  from  the  small  States,  oppos- 
ing a  national  government,  "because  they  considered  pro- 
portional representation  the  basis  of  it,"  '  got  together 
outside  the  Convention  and  concerted  the  "Paterson 
plan,"  which  proposed  to  retain  essentially  the  plan  of 
the  old  Confederation.     Dickinson  said  to  Madison: 

"You  see  the  consequences  of  pushing  things  too  far.  Some 
of  the  members  from  the  small  States  wish  for  two  branches  in 
the  General  Legislature,  and  are  friends  to  a  good  National 
Government;  but  we  would  sooner  submit  to  a  foreign  power 
than  to  be  deprived  in  both  branches  of  the  legislature  of  an 
equality  of  suffrage,  and  thereby  be  thrown  under  the  domina- 
tion of  the  larger  States."  a 

Following  the  introduction  of  the  Paterson  plan  there 
was  a  long  and  impassioned  debate.  Mr.  Ellsworth  of 
Connecticut  moved  that  the  rule  of  suffrage  in  the  second 
branch  (Senate)  be  the  same  as  that  established  by  the 
Articles  of  Confederation. 

"  We  have  decided,"  he  said,  "  against  this  rule  in  the  first 
branch.  For  that  I  am  not  sorry.  I  hope  it  will  become  a 
basis  of  compromise.  We  are  partly  federal,  partly  national. 
Proportional  representation  is  conformable  to  the  national 
principle  and  would  secure  the  large  States  against  the  small. 
An  equality  of  voices  is  conformable  to  the  federal  principle 
and  will  secure  the  small  States  against  the  large.  Let  us  find 
a  middle  ground  of  compromise.  Massachusetts  is  the  only 
Eastern    State    which  will  agree  to   the  plan  without  equal 

that  of  the  famous  three-fifths  compromise  of  the  Constitution.  All  the 
States  in  Congress  had  agreed  to  this  as  a  fair  basis  of  apportioning  taxes 
among  them,  and  when,  in  1787,  the  dispute  was  one  over  the  basis  of 
voting,  since  taxation  and  representation  were  supposed  to  go  together  this 
former  agreement  was  taken  as  the  basis  of  settlement.  Such  is  the  origin 
of  the  three-fifths  compromise. 

1  Madison's  Journal.  3  Ibid.,  June  15th. 


The  Senate  207 

voices.  An  attempt  to  deprive  the  States  of  this  dearest  right 
will  cut  America  in  two.  I  can  never  admit  that  there  is  no 
danger  of  a  combination  of  the  large  States.  .  .  .  We  are 
running  from  one  extreme  to  another.  We  are  razing  the 
foundations  of  the  building  when  we  need  only  repair  the 
roof. ' ' 

Much  more  of  the  discussion  follows,  but  enough  of  it 
has  been  given  to  show  that  in  the  Convention  there  were 
two  clearly  defined  parties,  or  bodies,  of  opinion : 

1.  One  looked  upon  the  States  as  geographical  districts 
of  people  composing  one  political  society. 

2.  The  other  considered  the  States  as  so  many  distinct 
political  societies. 

But,  as  Dr.  Johnson  of  Connecticut  pointed  out, 

"  the  fact  was  that  the  States  did  exist  as  political  societies,  and 
a  government  was  to  be  formed  for  them  in  their  political  ca- 
pacity, as  well  as  for  the  individuals  composing  The 
them.  The  States  must  be  considered  in  their  Connecticut 
political  capacity  in  some  respects  and  as  districts  ompro 
of  people  in  others.  The  two  ideas  embraced  on  different 
sides  instead  of  being  opposed  to  each  other  ought  to  be  com- 
bined ;  that  in  one  branch  the  people  ought  to  be  represented, 
in  the  other,  the  States." 

Here  Johnson  expresses  exactly  what  was  done  in  the 
formation  of  our  Congress. 

Thus,  the  so-called  Connecticut  Compromise,  particu- 
larly urged  by  Oliver  Ellsworth,  Roger  Sherman,  and 
Dr.  Johnson  from  that  State,  resulted  in  the  composition 
of  the  Senate  as  we  know  it  to-day,  by  which  each  State 
has  an  equal  number  of  votes  in  the  Senate,  in  considera- 
tion of  proportional  representation  being  allowed  in  the 
House.1 

It  will  be  seen  that  the  supposition  of  the  framers  was 

1  That  money  bills  might  originate  in  the  House  was  also  a  part  of  this 
arrangement. 


208  The  American  Republic 

that  there  would  be  constant  conflict  of  interests  between 
the  large  and  the  small  States.  It  has  never  been  so  in 
practice.  Ten  large  States  could  control  the  House,  but 
in  the  Senate  they  have  but  twenty  votes  out  of  ninety. 
The  House  has  never  been  the  organ  of  the  large  States 
nor  the  Senate  of  the  small  States.  American  politics 
have  never  turned  on  conflicts  between  these  two  sets  of 
States.1  Madison  perceived  and  pointed  out  that  the 
conflict  would  occur  between  the  Northern  States  and 
the  Southern,  owing  to  differing  interests, — especially  on 
account  of  slavery.2  But  it  was  especially  desired  to 
make  the  Senate  federal  in  character,  to  make  it  a  body 
representing  the  States  as  separate  and  equal  political 
communities. 

It  is  seen  from  studying  the  origin  of  the  Senate  that  its 

federal  nature  was  considered  its  dominant  characteristic. 

It  helped  to  preserve  the  federal  scheme,  that 

Federal  in       is,  a  government  by  States.     Here  the  States 

Character,  not  were  stiH  to  be  equal.      Such  an  arrangement, 

Democratic.       ...  .  ,,      , 

it  is  clear,  is  not  at  all  democratic,  not  con- 
formable to  republican  government.  Nevada,  with  a 
population  of  forty-two  thousand,  less  than  one  fourth 
as  many  people  as  are  in  the  city  of  Indianapolis,  has  as 
much  power  in  passing  the  laws  of  the  land,  or  prevent- 
ing their  passage  in  the  Senate,  as  New  York  with  over 
seven  million  inhabitants.  Delaware,  hardly  larger  than 
two  good-sized  counties,  has  as  much  weight  in  the  Senate 
as  the  great  State  of  Illinois.  Of  course,  a  state  of  things 
in  which  forty  thousand  people  are  given  as  much  political 
weight  as  seven  million  people  is  not  conformable  to 
democratic  government.  It  is,  as  Mr.  Bryce  says,  as  if  a 
single  county  in  England  should  be  given  as  much  weight 
in  the  British  Parliament  as  all  of  Scotland  and  the  most 

1  Bryce,  vol.  i.,  p.  185. 

8  See  also  Hamilton  in  the  New  York  Convention,  Elliott's  Debates,  p. 
213. 


The  Senate  209 

of  Wales.  But  we  must  remember,  in  thinking  of  this 
situation,  that  our  fathers  did  not  wish  to  form  a  purely 
democratic,  consolidated  government.  They  formed  a 
Federal  Government.  They  did  not  form  a  government 
for  the  people  of  the  United  State  en  masse  ;  they  formed 
a  government  of  the  people  in  States. 

With  the  growth  of  the  spirit  of  democracy,  with  the 
increased  feeling  that  the  majority  voice  of  the  whole 
people  of  America  should  be  decisive  in  the  can  Equal 
making  of  the  laws,  a  demand  has  arisen  that     Representa- 

....  ,      ,         ~  .  .  ,  ,  ,  tion  in  the 

this  provision  of  the  Constitution  be  changed ;  senate  be 
that  the  Senate  be  more  democratic,  more  rep-  Abandoned? 
resentative  of  the  population,  as  was  first  contended  by 
the  Large-State  party  in  the  Convention  of  1787.  It 
has  been  suggested,  for  instance,  that  every  State  be  al- 
lowed an  additional  Senator  for  every  million  of  its 
population,  each  State  with  less  than  a  million  still  being 
allowed  two. 

This  would,  of  course,  require  an  amendment  to  the 
Constitution  which  would  be  very  difficult,  if  not  impos- 
sible, to  obtain.  It  would  violate  the  original  agreement 
between  the  States  when  the  Constitution  was  formed. 
For  when  the  clause  providing  for  amendments  was  in- 
serted in  the  Constitution  it  was  specifically  agreed  that 
no  State,  by  amendment,  "shall  be  deprived  of  its  equal 
suffrage  in  the  Senate  without  its  consent."1  This,  of 
course,  is  to  be  looked  upon  merely  as  a  vain  attempt 
to  limit  the  future  sovereignty  of  the  nation.  The  Sovereign 
The  sovereignty  of  the  nation  cannot  be  lim-  Power  is 
ited,  and  if,  in  future,  the  people  of  the  States  n  m 
wish  to  make  a  new  Constitution,  omitting  this  provis- 
sion,  or  to  amend  the  present  Constitution  by  dropping 
it,  they  are  competent  to  do  so."      But   this  provision 

1  Constitution,  Article  V. 

1  In    1861,    in    order   to   conciliate    the   Southern    States   then  bent  on 
secession,    a   constitutional   amendment  was  passed  by  two  thirds  of  both 
M 


210  The  American  Republic 

carries  great  weight  as  the  plighted  faith  of  the  past  gen- 
eration to  the  small  States,  and  it  is  not  at  all  probable 
that  it  will  ever  be  changed.  Nor  is  it  evident,  despite 
its  inconsistency  with  the  democratic  principle,  that  it 
ought  to  be  changed.  Equal  representation  of  the  States, 
as  Mr.  Bryce  points  out,  has  its  advantages.  It  gives  a 
distinctly  different  basis  of  representation  from  that  of 
the  House,  a  matter  which  has  been  difficult  to  obtain  in 
upper  houses  in  Europe;  and  the  Senate,  by  means  of 
it,  forms  a  strong  connecting  link  between  the  State 
governments  and  the  National  Government.  The  Senate 
is  a  part  of  the  National  Government,  but  its  members 
derive  their  titles  to  their  seats  from  the  States  as  sepa- 
rate political  communities.1 

The  Senate  has  three  distinct  classes  of  functions : 
I.   Legislative;  2.    Executive;  3.   Judicial. 

1.  The  Legislative  Function  of  the  Senate  is  to  act  as  a 
co-ordinate  branch  of  the  national  legislature.  Its  con- 
sent is  necessary  to  the  passage  of  bills  which 
Legislative  become  law.  It  has  all  the  legislative  power 
Function  of     that  the  House  has.     It  may  not  originate  a 

the  Senate 

revenue  bill,  but  it  may  amend  such  a  bill  and 
by  this  means  be  as  influential  as  the  House  in  determin- 
ing its  final  form.  Allowing  to  the  House  the  exclusive 
privilege  of  originating  money  bills  was  a  concession  to 

Houses  and  ratified  by  a  few  legislatures,  guaranteeing  that  congressional 
power  should  never  be  used  to  interfere  with  slavery  in  the  States.  The 
constitutional  limitation  on  congressional  power  over  slavery  was  then 
generally  recognized  by  all  parties,  but  it  was  not  specifically  stated  in  the 
Constitution.  The  further  guarantee  of  the  proposed  constitutional 
amendment  was  merely  the  promise  of  the  sovereignty  for  that  day  that 
the  power  referred  to  would  not  be  exercised.  In  the  next  generation  the 
sovereign  nation  might  have  changed  its  mind  and,  by  a  two-thirds  vote  in 
Congress  and  the  ratification  of  three  fourths  of  the  States,  might  have  dis- 
regarded the  limitation  which  it  had  imposed  upon  itself.  An  unamend- 
able  part  of  a  Constitution  is  inconsistent  with  sovereignty.  The  sovereign 
power  can  have  its  own  way  under  the  law. 
'Bryce,  Commonwealth,  vol.  i.,  p.  109. 


The  Senate  211 

the  large  States  in  return  for  the  concession  that  the 
small  States  should  have  equal  representation  in  the 
Senate.  When  it  was  subsequently  changed  so  as  to 
allow  the  Senate  to  amend  revenue  bills  the  concession 
of  the  small  States  came  to  nothing.  It  was  thought  the 
Senate  represented  the  people  as  much  as  the  House  and 
should  have  equal  powers.  The  Senate  holds  that  a  bill 
to  repeal  or  reduce  taxes  is  not  a  bill  to  raise  revenue, 
and  that  it  may  originate  such  a  bill,  though  by  its  passage 
new  taxes  may  be  made  necessary.  In  1894,  the  Wilson 
Tariff  Bill  that  came  from  the  House  was  changed  by  the 
addition  of  one  hundred  and  forty-three  amendments. 
Its  friends  in  the  House  could  then  hardly  recognize  it, 
and  President  Cleveland,  who  favored  the  original  bill, 
refused  to  sign  it. 

2.    The  Executive  Functions  of  the  Senate  are: 

(1)  Participation  in  the  appointing  power; 

(2)  Participation  in  the  treaty-making  power. 
Appointments  and  treaties  made  by  the  President  must 

be  confirmed  in  the  Senate  by  a  two-thirds  vote.  If  two- 
thirds  of  the  Senate  do  not  vote  to  confirm,  the  appoint- 
ment, or  the  treaty,  falls  to  the  ground. 

In  the  performance  of  these  functions  the  Senate  goes 
into  Executive  Session.  This  is  a  secret  session,  a  survival 
of  the  early  practice ;  for  during  the  first  five  Executive 
years  of  the  Senate's  history,  till  February,  Session  of 
1794,  all  the  sessions  of  the  Senate  were  in 
secret.1  It  was  thought  the  public  must  not  know  of,  or 
be  allowed  in  any  way  to  interfere  with,  their  proceed- 
ings. In  an  executive  session  the  galleries  are  cleared, 
the  doors  are  closed,  and  the  obligation  of  secrecy  is  im- 
posed on  every  Senator,  who  becomes  liable  to  expulsion 
if  he  disclose  the  confidential  proceedings.  Newspaper 
reporters,  however,  have  a  keen  scent,  and  they  often 

1  Foster  on  the  Constitution,  p.  492,  vol.  i.  ;  see  Maclay's  Secret  Journal. 
The  Constitutional  Convention  of  1787  held  secret  sessions. 


212  The  American  Republic 

find  out  and  publish  what  occurs  in  secret  session.  The 
newspaper  men  will  not  give  away  the  "leaky"  Senators, 
and  a  Senator  who  will  betray  the  secrets  of  the  session  will 
swear  falsely  upon  investigation ;  so  it  has  been  found  im- 
possible to  punish  any  one  for  betrayal.  The  difficulty 
of  securing  secrecy  has  arisen  chiefly  in  cases  of  appoint- 
ments and  not  so  much  in  cases  of  discussions  on  treaties. 
There  is  a  general  demand  that  the  executive  session 
be  held  in  the  open ;  but  this  movement  has  been 
blocked  by  some  Senators.  "The  black  sheep  of  the 
Senate  love  darkness  because  their  works  are  evil ;  other 
members  of  undoubted  respectability  defend  the  present 
system  because  they  think  it  supports  the  power  and 
dignity  of  their  body."  ' 

3.  The  Judicial  Function  of  the  Senate  consists  of  its 
sitting  as  a  court  for  the  trial  of  impeachment  cases 
brought  up  by  the  House. 

Originally,  the  Senate  was  looked  upon  chiefly  as  an 
executive  body.  Hamilton  spoke  of  the  executive  au- 
The  Senate  thority  as  being  divided  between  two  branches, 
Originally       ^e  President  and  the  Senate.2     The  Senate  was 

Chiefly  an 

Executive  to  be  a  small  body  of  twenty-six  members  who 
Body.  would  sit  and  consult  with   the  President  on 

appointments  and  treaties  and  collateral  phases  of  execu- 
tive business.  In  the  earlier  days  of  the  Senate  the 
Senators  were  looked  upon  largely  as  ambassadors  from 
the  States.  The  President  and  Cabinet  ministers  fre- 
quently consulted  in  person  with  the  Senate.  An  effort 
was  made  to  revive  this  practice  under  Madison,  who 
declined  an  invitation  from  the  Senate  to  consult  with  it 
on  foreign  affairs.  Its  legislative  functions  were  not  then 
relatively  of  so  much  importance  as  its  executive  func- 
tions. It  did  not  become  co-ordinate  with  the  House  in 
legislation  until  after  18 16,  when  its  standing  committees 
were  created. 

1  Bryce,  vol.  i.,  p.  105.      2  See  the  Federalist  on  this  topic,  Nos.  61-65. 


The  Senate  213 

This  idea  as  to  the  chief  function  of  the  Senate  came 
from  colonial  traditions.  The  upper  houses  of  the  co- 
lonial legislatures  were  Governors'  Councils.  They  were 
largely  for  administrative  purposes.  These  colonial 
Councils,  or  Senates,  were  to  consult  with  the  governors 
as  to  appointments  and  as  to  checks  on  the  Assemblies 
and  the  advice  to  be  sent  to  the  home  Government. 
Usually  they  were  not  popular  bodies,  but  were  depen- 
dent upon  the  Governor  or  the  Crown,  though  in  some 
Colonies  they  were  elected  by  the  lower  House.  These 
lower  houses  usually  determined  upon  taxes,  appropria- 
tions, salaries,  and  new  laws,  subject  to  the  royal  veto. 
So  with  the  new  United  States  Senate.  It  was  to  check 
and  revise  legislation,  like  the  English  House  of  Lords, 
or  the  colonial  Council,  but  not  to  enter  originally  into 
the  merits  and  policy  of  new  laws.  It  was  the  presump- 
tion that  public  policy  and  legislation  would  be  deter- 
mined in  the  House;  that  a  bill  which  passed  the  House 
would  pass  the  Senate  unless  it  were  plainly  unconstitu- 
tional or  flagrantly  opposed  to  the  public  interest.  The 
Senate  should  intervene  to  stop  a  measure  on  the  same 
principle  that  the  early  Presidents  used  the  veto.1  That 
the  majority  of  the  Senators  did  not  like  a  measure  was 
not  to  be  taken  as  sufficient  reason  for  their  voting  against 
it.  The  Senate  was  to  restrain  the  House,  but  not  to 
take  its  place  in  legislation.2 

1  See  p.  149. 

?  "  At  the  origin  of  the  Government,  the  Senate  seemed  to  be  regarded 
chiefly  as  an  executive  council.  The  President  often  visited  the  chamber 
and  conferred  personally  with  this  body  ;  most  of  its  business  was  trans- 
acted with  closed  doors,  and  it  took  comparatively  little  part  in  the  legisla- 
tive debates.  The  rising  and  vigorous  intellects  of  the  country  sought  the 
arena  of  the  House  of  Representatives  as  the  appropriate  theatre  for  the 
display  of  their  powers.  Mr.  Madison  observed,  on  one  occasion,  that, 
being  a  young  man,  and  desiring  to  increase  his  reputation,  he  could  not 
afford  to  enter  the  Senate  ;  and  it  will  be  remembered  that,  so  late  as  1812, 
the  great  debates  which  preceded  the  war  and  aroused  the  country  to  the 
assertion  of  its  rights,  took  place  in  the  other  branch  of  Congress.     To 


214  The  American  Republic 

Hamilton  set  forth  the  following  purposes  in  the  crea- 
tion of  the  Senate : 

1.  To  conciliate  the  spirit  of  independence  in  the  States 
by  equal  representation.  This  was  an  end  obtained  but 
not  a  purpose  put  forward  in  the  outset.1 

2.  To  create  a  council  qualified  by  size  to  advise  and 
check  the  President  in  appointments  and  treaties. 

3.  To  restrain  the  House,  guarding  against  passion  and 
sudden  changes  in  the  people. 

4.  To  provide  a  body  of  stability,  character,  and  con- 
tinuity in  policy ;  of  men  who  are  of  larger  experience,  of 
longer  terms,  and  more  independent  of  popular  election. 

5.  To  establish  a  court  for  impeachment. 

The  Senators  are  elected  by  the  legislatures  of  their 
respective  States.     Until  1866,  each  State  legislature  was 

Method  of  l^  ^ree  *°  e^ect  ^s  Senators  in  its  own  way. 
Electing  "The  times,  places,  and  manner  "  of  choosing 
Senators  "shall  be  prescribed  in  each  State  by 
the  legislature  thereof;  but  the  Congress  may  at  any 
time  by  law  make  or  alter  such  regulations  except  as  to 
the  places  of  choosing  Senators."2  In  1866,  a  Federal 
law  was  passed  providing  for  the  present  method  of 
electing  Senators.  It  requires  that  each  House  of  a  State 
legislature  shall  first  vote  separately  for  the  election  of  a 
Senator.  If  the  choice  of  both  houses  does  not  fall  on 
the  same  person,  the  houses  shall  then  meet  in  joint  ses- 
sion and  shall  proceed  to  vote  viva  voce,  a  majority  of 

such  an  extent  was  the  idea  of  seclusion  carried  that  when  this  chamber 
[the  room  now  occupied  by  the  Supreme  Court]  was  completed,  no  seats 
were  prepared  for  the  accommodation  of  the  public.  But  now  the  Senate, 
besides  its  peculiar  relations  to  the  executive  department,  assumes  its  full 
share  of  duty  as  an  equal  branch  of  the  legislature." — Vice-President 
Breckinridge  to  the  Senate  on  their  leaving  the  old  chamber  for  the  new, 
Jan.  4,  1859,  Congressional  Globe,  1858-59,  Part  I.,  p.  203,  cited  in  Foster 
on  the  Constitution,  vol.  i.,  p.  491.  See  Furber's  Precedents  Relating  to 
the  Privileges  of  the  Senate  ;   Lieber,  Civil  Liberty,  chap.  xiii. 

1  See  p.  202.  s  Constitution,  Art.  I.,  Sec.  4,  CI.  1 


The  Senate  215 

« 

each  house  being  present,1  and  a  majority  of  the  whole 
legislature  shall  be  required  to  elect.  At  least  one  vote 
daily  shall  be  taken  until  election  is  made."  These  pro- 
visions may  lead  to  the  breaking  of  a  quorum  and  to  the 
senatorial  deadlock  in  the  State  legislature.  If  a  party 
majority  for  a  candidate  be  very  small,  the  members  of 
the  opposing  party  may  absent  themselves  from  the  joint 
meeting  of  the  legislature.  Unless  the  majority  party 
can  have  every  one  of  its  members  present  the  quorum 
will  be  broken  and  no  election  can  legally  be  held.  If  a 
third  party  should  hold  a  small  balance  of  power  in  the 
legislature,  the  legislature  in  joint  session  might  ballot 
every  day  for  months  without  electing. 

Like  the  law  of  1842,  regulating  the  election  of  Repre- 
sentatives, this  law  grew  out  of  a  notable  election  con- 
troversy in  the  Senate.  This  case,  like  the  one  in  the 
House,  also  came  up  from  New  Jersey.  In  the  winter 
and  spring  of  1865,  the  legislature  of  that  State  seemed 
unable  to  elect  a  Senator.  After  many  efforts  at  election 
it  was  found  that  no  candidate  could  get  "a  majority  of 
the  votes  of  the  members  elected  to  both  houses  of  the 
legislature,"  which  was  described  in  New  Jersey  as  the 
rule  of  election.  It  was  then  decided,  in  convention  of 
the  two  houses,  to  rescind  this  rule,  and  it  was  declared 
that  "any  candidate  receiving  a  plurality  of  votes  of  the 
members  present  shall  be  declared  duly  elected."     The 

1  See  Atlantic  Monthly  for  August,  1891,  article  by  W.  P.  Garrison. 

5  Senator  Fessenden  of  Maine  objected  to  the  viva  voce  vote  as  liable  to 
put  men  under  restraints  from  party  discipline,  which  would  lead  them  to 
act  against  their  conscientious  convictions  of  what  was  right  and  proper  in 
the  individual  case,  and  which  might  bring  a  sort  of  compulsory  pressure 
upon  them  that  might  be  objectionable.  Senator  Trumbull  of  Illinois 
argued  that  constituents  had  a  right  to  know  how  members  voted ;  there 
will  be  no  chance  to  cheat  by  false  or  double  ballots  ;  instructing  constitu- 
ents had  a  right  to  know  that  their  mandate  was  obeyed.  In  the  discussion 
Senator  Anthony  advocated  open  voting,  not  only  in  the  election  of  Sen- 
ators, but  at  the  polls:  "It  prevents  corruption,  prevents  deception,  and 
cultivates  a  manly  spirit  everywhere." 


2i6  The  American  Republic 

legislature  consisted  of  a  Senate  with  twenty-one  mem- 
bers, and  a  House  with  sixty  members.  The  resolution 
to  elect  by  a  plurality  was  carried  in  the  joint  conven- 
tion by  a  majority  of  one;  of  the  House  members  thirty 
voted  for  it  and  thirty  against  it.  It  was  therefore  shown 
that  the  result  could  not  have  been  carried  with  the 
two  houses  voting  separately,  in  regular  legislative  form. 
Under  this  plurality  rule  John  P.  Stockton,  the  Demo- 
cratic candidate,  received  forty  votes,  John  C.  Ten  Eyck, 
the  Republican  candidate,  received  thirty-seven  votes, 
and  four  other  candidates,  one  vote  each.  Thus  there 
were  forty-one  votes,  a  majority,  against  Stockton,  but 
as  he  had  received  a  plurality,  he  was  declared  duly 
elected.  Mr.  Stockton  took  his  seat  on  the  first  day  of 
the  next  session  of  the  Senate,  and  was  regularly  sworn 
in.  Thirty-seven  members  of  the  New  Jersey  legislature 
sent  to  the  Senate  a  protest  against  Mr.  Stockton's  being 
allowed  to  retain  his  seat  in  the  Senate.  They  claimed 
that  a  Senator  must  be  elected  by  the  legislature,  and 
a  minority  could  not  constitute  the  legislature.  "The 
consequences  which  are  possible,"  they  urged,  "from 
admitting  the  right  to  elect  by  a  plurality  vote  furnish  a 
conclusive  argument  against  it.  If  two  members  vote  for 
one  person  and  every  other  member,  by  himself,  for  differ- 
ent individuals,  the  person  having  two  votes  would  have 
a  plurality.  Can  it  be  that  in  such  a  case  he  would  be 
Senator?  This,  indeed,  is  an  extreme  case,  but  such  cases 
test  the  propriety  of  legal  doctrine,  and  many  equally 
unjust  but  less  extreme  cases  may  easily  be  offered."1 
The  Judiciary  Committee  of  the  Senate,  consisting  of  five 
Republicans  and  two  Democrats,  reported,  with  only  one 
dissenting  Senator,2  that  "Mr.  Stockton  was  duly  elected 
and  entitled  to  his  seat."  3 

1  See  Blaine's  Twenty  Years  of  Congress,  vol.  ii.,  pp.  154  et  sea. 

2  Senator  Clark  of  New  Hampshire. 

3  A  summary  of  Senator  Fessenden's  argument  against  this  report  is  in- 
teresting from   the  constitutional  point  of   view.     The  legislature,  in  the 


The  Senate  217 

After  much  parliamentary  wrangling  the  report  was 
rejected,  and  by  a  very  close  vote  Mr.  Stockton  was  de- 
nied a  seat  in  the  Senate.  The  vote  was  largely  the  result 
of  the  fierce  partisan  spirit  of  the  time.      Mr.  Blaine  says : 

"In  the  decision  itself,  however,  there  has  been  general 
acquiescence,  and  it  led  to  an  important  reform  in  the  manner 
of  choosing  United  States  Senators.  The  well-known  Act  of 
July  26,  1866,  regulating  the  time  and  manner  of  holding  elec- 
tions for  Senators  in  Congress,  was  the  direct  fruit  of  the  Stock- 
ton controversy.  The  reluctance  to  interfere  with  the  supposed 
or  asserted  rights  of  States  had  too  long  delayed  this  needful 
exercise  of  national  power.  It  thus  came  to  pass  that  many 
methods  were  developed  in  different  States  for  choosing  Sena- 
tors,— methods  that  widely  differed  in  their  essential  character- 
istics. Hence  there  was  variety,  and  even  contrariety,  where 
there  should  have  been  only  unity  and  harmony.  These 
divergent  practices  had  been  allowed  to  develop  for  seventy- 
seven  years  of  the  nation's  life,  when,  admonished  by  the 
Stockton  case  of  the  latitudinary  results  to  which  loose  methods 

election  of  a  Senator,  is  merely  the  agent  of  the  Constitution  of  the  United 
States.  It  is  therefore  under  the  control  of  no  other  power.  No  provision 
of  the  constitution  of  New  Jersey  nor  any  law  of  a  previous  legislature 
directing  the  mode  in  which  a  Senator  shall  be  elected  would  in  any  way 
bind  the  legislature  which  is  to  perform  this  act.  The  legislature  is  inde- 
pendent of  everything  except  the  Constitution  of  the  United  States.  But 
although  thus  independent  of  State  control,  when  it  acts  in  the  election  of 
a  Senator  it  must  act  as  a  legislature  ;  its  act  must  be  a  legislative  act.  It 
is  essential  to  a  legislative  act  that  it  be  performed  by  the  two  Houses  act- 
ing separately.  The  legislature  may  vote  to  form  a  convention  for  the 
purpose  of  choosing  a  Senator,  but  if  the  ordinary  and  received  law  of 
electing  in  this  convention  is  to  be  changed,  the  legislature  and  not  the 
convention  is  the  proper  body  to  change  it.  And  when  the  legislature 
created  a  body  other  than  itself,  though  constituted  of  the  same  members, 
a  convention  to  choose  a  Senator,  that  body  must  proceed  in  the  choice  of 
a  Senator  according  to  the  universally  received  parliamentary  and  common 
law  upon  the  subject  of  elections.  The  convention  in  New  Jersey,  unau- 
thorized by  law,  undertook  to  change  this  acknowledged  parliamentary 
and  common-law  process  and  to  elect  in  a  different  manner  from  that  pre- 
scribed, namely,  by  a  plurality  vote.  See  Congressional  Globe,  vol.  70,  p. 
1567,  1st  Sess.,  39th  Cong.,  March  22,  1866. 


2i8  The  American  Republic 

might  lead,  Congress  took  jurisdiction  of  the  whole  subject. 
The  exercise  of  this  power  was  a  natural  result  of  the  situation 
in  which  the  nation  was  placed  by  the  war.  Previous  to  the 
civil  conflict  every  power  was  withheld  from  the  National  gov- 
ernment which  could  by  any  possibility  be  exercised  by  the 
State  government.  Another  theory  and  another  practice  were 
now  to  prevail;  for  it  had  been  demonstrated  to  the  thoughtful 
statesmen  who  then  controlled  the  Government  that  everything 
which  may  be  done  by  either  nation  or  State  may  be  better 
and  more  securely  done  by  the  nation.  The  change  of  view 
was  important  and  led  to  far-reaching  consequences."  ' 

While  this  change  in  the  legislative  election  of  Senators 
is  accepted  as  a  suitable  improvement  over  the  former 
diverse  methods,  there  has  not,  however,  been  acquies- 
cence in  the  original  provision  committing  the  election  to 
the  legislature. 

The  present  method  has  aroused  great  opposition  and 

severe  criticism.     It  has  been  called  "one  of  the  most 

corrupting  elements  in   our  national  political 

Objections  to  r        °  . 

Electing         system.  Every  vote  in  the  Senate  is  a  bone 

united  states  of   contention   between   the  national  political 

Senators  by 

state  parties,   and  these  parties,  therefore,  through 

Legislatures.    tnen-  national  organizations   strive   to   control 
the  various  State  legislators  by  whom  the  Senators  are 
elected.     This  means  that  parties  in  the  States  are  made 
to  coincide   with    parties  in  the  nation;    that 

Influence  of  •   i  r 

National  legislatures  are  to  be  chosen,  not  with  refer- 
Parties  on       ence  tQ  ^  neecjs  an(j  interests  of  the  State, 

the  Choice  .  TT     .        , 

of  state  but  with  reference  to  the  election  of  a  United 

Legislatures.  States  Senator;  that  the  people  of  the  State 
cannot  divide  naturally  on  questions  of  local  interest  and 
importance,  but  are  divided  artificially  by  the  greater  or 
more  dominant  interests  of  national  parties ;  that  in  vot- 
ing for  State  legislators  we  are  led,  not  to  vote  for  the 

1  Blaine,   Twenty  Years  of  Congress,  vol.  ii.,  p.  160. 

2  W.  P.  Garrison,  Atlantic  Monthly,  August,  1891. 


The  Senate  219 

best  and  most  competent  men  who  would  take  the  best 
care  for  the  interests  of  the  State,  but  to  vote  for  the  man 
of  certain  party  allegiance,  that  he  may  vote  for  a  Senator 
who  will  promote  the  party  policy  which  we  wish  to  see 
successful  in  the  nation.  This  practice  has  had  great  and 
decisive  influence  in  our  history  in  promoting  a  tendency 
toward  nationalization  or  consolidation.  It  centres  the 
attention  and  interest  of  the  citizen  upon  the  affairs  of 
the  nation,  and  reduces  his  interest  in  the  affairs  TotheInjury 
of  his  State,  to  the  great  detriment  of  good  of  Good  Local 
local  government.  Therefore  this  method  of 
electing  Senators,  it  is  said  with  some  truth  and  force,  is 
chargeable  with  the  deterioration  of  State  legislatures, 
with  the  growth  of  machine  rule,  with  the  purchasability 
of  Senatorships,  and  with  the  decline  of  the  United  States 
Senate  itself.  Not  only  are  State  legislators  elected 
primarily  for  the  purpose  of  electing  United  States  Sena- 
tors and  only  secondarily  to  attend  to  the  business  of  the 
State,  but  frequently  the  whole  time  of  the  legislature 
is  taken  up  with  prolonged  and  sometimes  fruitless  efforts 
to  elect  a  Senator,  and  the  business  of  the  State  is  entirely 
neglected.1 

The  problems  of  State  governments  are  by  no  means 

1  "  Originally  framed  for  the  purpose  of  securing  a  '  select  appointment,' 
it  has,  in  its  results,  ended  in  being  the  means  by  which  vested  interests 
most  easily  obtain  an  influence  in  our  Government.  At  this  moment  (1S98) 
certain  Senators  are  understood  to  represent  sugar,  or  silver,  or  steel,  or 
railroads,  and  this  is  due,  as  boldly  expressed  in  a  remark  credited  to  Jay 
Gould,  to  the  fact  that  it  is  cheaper  to  buy  a  legislature  than  it  is  to  buy  a 
people,  and  therefore  this  branch  of  our  Government  is  at  once  the  cheapest 
and  easiest  means  by  which  special  interests  may  secure  representation."— 
Paul  Leicester  Ford's  edition  of  the  Federalist,  p.  409,  note.  See  also 
Haynes's  Popular  Election  of  United  States  Senators,  1893.  See  two  articles 
for  and  against  election  of  United  States  Senators  by  the  people,  New 
York  Independent,  May  31,  1900,  by  Senator  W.  A.  Harris  of  Kansas,  and 
Senator  William  E.  Chandler  of  New  Hampshire.  Also  ex-Senator  George 
F.  Edmunds  in  The  Forum,  vol.  xviii.,  Senator  John  II.  Mitchell,  Forum, 
vol.  xxi.,  and  C.  H.  Fox  in  The  Arena,  May,  1902. 


220  The  American  Republic 

the  same  as  the  problems  of  the  National  government, 
and  there  is  no  reason  why  the  two  should  be  mixed  as 
they  now  are  in  the  election  of  Senators.  The  legislative 
candidate  who  represents  the  best  man  for  the  Senate 
may  be  altogether  unfit  for  the  office  of  legislator.  The 
voter  cannot  vote  intelligently  when  he  is  compelled  to 
vote  on  two  wholly  different  sets  of  questions  at  the 
same  time,  yet  that  is  what  every  voter  is  compelled  to  do 
when  he  votes  for  State  legislators  to  elect  United  States 
Senators. 

The  result  is  that  a  strong  demand  has  arisen  for  the 
election  of  Senators  by  a  direct  vote  of  the  people.  This 
would  leave  the  State  legislature  free  to  attend  to  its  own 
business.  It  is  thought  that  this  method  would  obviate 
the  objections  which  we  have  recited,  and  that  it  would 
Woulr,  Pop.  especially  tend  to  prevent  the  securing  of  a 
uiar  Election  senatorial  seat  by  bribery,  as  a  millionaire  cor- 
strain  Corrupt  rupt  candidate  could  not  bribe  the  whole  peo- 
Practices?  pje  0f  a  State,  while  he  might  conveniently 
bribe  a  few  members  of  a  legislature, — enough  to  turn 
the  scale  in  his  favor. 

This  change  would  necessitate  a  constitutional  amend- 
ment. The  difficulty  of  securing  such  an  amendment 
will  probably  result  in  its  never  being  brought  about  in 
that  way.  But  the  change  may  be  brought  about  in 
effect — in  fact,  it  is  being  brought  about — by  a  change 
in  custom  and  usage,  that  is,  by  the  law  of  the  unwritten 
constitution.  In  the  famous  senatorial  contest  in  Illi- 
The  People  nois,  in  1858,  between  Lincoln  and  Douglas, 
may  secure     eacri  partv  nominated  its  candidate  in  a  State 

Direct  r         j 

Election  of  convention.  The  people  knew  beforehand  that 
Senators  by  a  jr  ^e  Republicans  carried  the  legislature  Lin- 

Change in  the  r  °# 

Unwritten  coin  would  be  elected  Senator,  and  if  the  Demo- 
Political  crats  carried  the  legislature  Douglas  would  be 
Custom.  elected  Senator.     So  the   popular   election   in 

November  was  like  a  political  mandate  from  the  people 


The  Senate  221 

to  the  legislature  to  elect  a  certain  man  Senator.  Fre- 
quently since  1858,  political  party  conventions  in  various 
States  have  nominated  their  candidates  for  the  Senate 
in  this  way,  and  the  party  majority  in  the  legislature 
have  subsequently  merely  ratified  the  nomination.  In 
1898,  Senator  Hanna  of  Ohio  was  so  nominated  by 
the  Ohio  Republican  State  Convention.  A  few  Republi- 
can members-elect  of  the  legislature  refused  to  support 
Senator  Hanna,  and  they  were  regarded  as  recreant  to 
their  party  obligations.  If  this  custom  should  become 
general  and  fixed,  it  would  place  the  virtual  election  of 
Senators  in  the  party  conventions,  and  the  party  majority 
in  the  legislature  would  be  like  the  Electoral  College, 
merely  a  ratifying  body,  bound  to  elect  the  one  already 
determined  upon.  It  is  conceivable  that  this  practice 
may  easily  grow  up  and  be  just  as  binding  upon  the  mem- 
bers of  the  legislature  as  the  choice  of  the  party  candidate 
for  President  is  now  binding  upon  the  members  of  the 
Electoral  College.  This  would  be  an  approach  toward 
popular  election,  provided  only  that  the  people  of  the 
dominant  party  were  able  to  control  the  nominations 
through  their  party  machinery  by  a  good  primary  nomi- 
nating system ;  otherwise,  it  might  result  in  the  virtual 
election  of  Senators  by  a  clique  of  party  bosses  and  man- 
agers of  the  machine. 

There  is  another  way  by  which  custom  or  independent 
State  action  may  modify,  or  entirely  change,  the  choice 
of  United  States  Senators.     The  constitution 

Or  by  the 

of  the  State  of  Nebraska  allows  the  voters  in  independent 
voting  for  members  of  the  State  legislature  to  ^gt°ante°f 
"express  by  ballot  their  preference  for  some 
person  for  the  office  of  United  States  Senator.  The 
votes  cast  for  such  candidates  shall  be  canvassed  and  re- 
turned in  the  same  manner  as  for  State  officers."  Under 
such  a  regulation,  which  could  be  provided  by  statute 
law  in  any  State,  any  party  of  citizens  could  nominate  a 


222  The  American  Republic 

suitable  candidate  for  the  Senate  and  have  him  voted  for 
in  all  the  counties.  It  is  true  the  legislature  would  not  be 
bound  by  law  to  elect  him,  though  he  should  receive  a 
majority  of  all  the  votes  cast,  yet  custom  and  public  ex- 
pectation and  the  political  mandate  which  comes  with  a 
popular  majority  are  very  effective,  and  it  would  soon 
come  to  pass,  as  it  has  with  the  Electoral  College,  that 
the  legislature  would  invariably  ratify  an  election  so  or- 
dered by  a  popular  vote.  This  is  what  is  meant  by  the 
"actual  forces  in  politics  "  and  the  "law  of  the  unwritten 
constitution"  prevailing  over  the  law  of  the  written 
Constitution.  The  legislature  would  continue  to  elect 
United  States  Senators  only  in  name. 

In  fact,  the  legislature's  power  of  election  is  only 
nominal,  as  it  is.  The  actual  election  is  already  made  by 
The  Actual  ^he  Partv  caucus  of  the  legislature  before  the 
Election  is  by  legislature  meets.  If  the  Republicans  carry  the 
Caucufnot  majority  of  the  members  of  a  legislature  in  any 
by  the  State  election,  the  majority  of  the  Republican 

egisature.  iegjsia^jve  caucus  will  elect  the  Senator.  All 
the  Republican  members  of  the  legislature  must  go  solid 
for  the  caucus  candidate  or  they  may  not  be  able  to  elect 
their  man.  The  legislature  then  merely  goes  through  the 
form  of  ratifying  the  nomination  of  the  caucus. 

It  is  the  present  practice  in  most  of  the  States  that 
when  a  senatorial  vacancy  approaches,  aspirants  an- 
Methodsof  nounce  themselves,  or  let  it  be  known  among 
Senatorial  their  friends  that  they  are  candidates  for  the 
place.  The  candidate  then  enters  actively  into 
the  electoral  campaign,  making  speeches  throughout  the 
State,  and  his  friends  in  the  various  counties  seek  to 
secure  the  nomination  and  election  of  legislative  candi- 
dates pledged,  or  favorable,  to  his  interest.  Sometimes, 
preceding  an  election,  candidates  for  the  legislature  are 
expected  to  declare  for  which  senatorial  candidate  they 
will,  if  elected,  give  their  votes.     And  it  is  now  coming 


The  Senate  223 

to  be  the  practice,  unfortunately,  that  the  party  majority 
in  the  legislature  feel  disposed  to  limit  their  choice  to  the 
candidates  who  have  previously  announced  themselves, 
and  who  have  gone  upon  the  stump  in  their  own  in- 
terests. This  custom  limits  the  discretion  of  the  legis- 
lature without  doing  anything  to  promote  a  true  and 
popular  choice,  for  it  frequently  happens  that  the  best 
men,  men  who  would  reflect  great  honor  on  their  State  in 
the  Senate,  and  whom  the  masses  of  the  party  would  de- 
light to  honor,  will  not  announce  themselves  as  candi- 
dates and  make  a  campaign  for  the  place. 

The  Senate  has  no  rule  for  the  closing  of  debate.  To 
move  the  previous  question  for  the  purpose  of  shutting 
off  debate  and  bringing  the  pending  question  Qoture  in 
to  a  vote  would  be  out  of  order  in  the  Senate.1  the  Senate. 
This  comes  partly  from  what  is  called  the  dignity  and 
courtesy  of  the  Senate.  The  idea  is  that  the  Senate  is 
too  dignified  a  body,  and  desires  to  repose  such  con- 
fidence in  its  members  and  show  them  such  deference 
and  courtesy,  and  expects  such  deference  and  courtesy  in 
return,  that  it  is  not  to  be  presumed  that  any  honorable 
Senator  (and  all  Senators  are  honorable  men)  will  be 
guilty  of  abusing  his  freedom  and  his  privilege;  it  is  not 
to  be  supposed  that  a  Senator  would  seek  to  address  the 
Senate  when  he  has  nothing  to  communicate — that  he 
would  seek  to  talk  merely  to  kill  time. 

It  has  been  found  repeatedly  that  this  senatorial  cour- 
tesy, or  this  confidence  in  the  honor  and  good  faith  of 
the  Senators,  is  misplaced.  They  occasionally  Filibustering 
resort  to  the  privilege  of  unlimited  debate  for  in  the  Senate- 
filibustering  purposes,  to  wear  out  the  majority  and  to 
stave  off  or  defeat  the  pending  measure.  The  Lodge  Fed- 
eral Elections  Bill  was  defeated  in  this  way  in  1890.  Sen- 
ator George  of  Mississippi  held  the  floor  for  two  or  three 
days,  between  repeated  adjournments,  to  prevent  the  bill 

'On  cloture  in  the  Senate,  see  Bryce,  vol.  i.,  p.  104. 


224  The  American  Republic 

from  coming  to  a  vote.  And  in  1893,  on  the  bill  to  re- 
peal the  compulsory  silver-purchase  clause  of  the  Sher- 
man Act  of  1890,  when  the  majority  were  intent  on 
remaining  in  session  to  force  a  vote,  Senator  Allen  of 
Nebraska  spoke  consecutively  for  fourteen  hours, — 
throughout  the  whole  night.  Eight  or  ten  Senators  with 
such  lung  power,  who  will  relieve  one  another  in  such  a 
contest,  can  usually  force  the  majority  to  consent  to  ad- 
journment, or  to  take  up  some  other  business.  When  it 
comes,  like  this,  to  a  contest  of  physical  endurance,  the 
small  minority  have  a  decided  advantage.  They  need 
only  keep  three  or  four  Senators  on  guard ;  the  others  of 
like  mind  may  absent  themselves,  sleep,  and  rest,  and  so 
prepare  themselves  for  their  service  in  turn,  while  their 
absence  helps  to  break  the  quorum.  But  the  majority 
members  wishing  to  pass  the  measure  must  be  present ; 
otherwise  the  business  of  the  Senate  is  brought  to  a 
standstill,  as  the  filibusters  desire;  for  a  filibustering 
minority  speaker,  when  he  sees  that  a  quorum  is  not 
present,  can  rest  from  his  speech  until  the  majority  are 
waked  up  and  brought  in.  So  the  majority  can  only 
sleep  on  their  arms,  that  is,  on  their  desks;  and  they  are 
constantly  subject  to  having  their  rest  disturbed  by  a  roll- 
call  to  which  they  must  answer. 

It  must  be  understood  that  these  practices  are  very 
rare,  only  to  be  resorted  to  in  extreme  cases,  when  the  mi- 
nority feel  that  their  cause  justifies  their  resort  to  this  fili- 
bustering weapon.  There  are  some  things  to  be  said  in 
favor  of  leaving  open  this  procedure  as  a  defence  for  the 
rights  of  the  minority.  It  is  only  on  matters  of  deep  and 
vital  interest  to  their  constituents  that  Senators  would  feel 
called  upon  to  make  such  protest  and  combat  against  the 
majority.  Usually  the  Senators  have  too  much  respect 
for  their  colleagues  and  for  the  dignity  and  courtesy  of  the 
Senate  to  abuse  the  privilege  of  the  freedom  of  debate, 
and  it  cannot  be  said  that  the  country  has  ever  seriously 


The  Senate  225 

suffered  from  the  conduct,  of  the  minority  in  the  exercise 
of  their  privilege  of  unlimited  debate.  The  United  States 
Senate  still  holds  its  place  as  one  of  the  most  worthy  and 
honorable  legislative  bodies  in  the  world.1 

The  Senate,  however,  has  it  in  its  power  to  adopt  such 
rules  as  will  curtail  debate  and  force  a  vote.  It  is,  how- 
ever, very  reluctant  to  use  this  power,  and  it  The  Senate 
will  do  so  only  when  necessity  requires.      It  Rules- 

might  by  rule  require  its  chairman  to  put  the  motion  after 
a  limited  time ;  or  set  a  day  on  which  the  main  vote  shall 
be  taken,  or  it  might  again  introduce  into  the  proceedings 
the  previous  question,  though  this  rule  has  long  been 
obsolete.  The  Senate's  rules,  however,  are  designed 
rather  for  the  purpose  merely  of  preserving  order,  allow- 
ing freedom  of  discussion,  and  for  the  protection  of  the 
minority.  The  Senate  proceeds  on  the  principle  that  if 
hasty  and  ill-considered  legislation  is  to  be  prevented  the 
broadest  freedom  of  debate  must  be  allowed.2 

The  Courtesy  of  the  Seriate  is  a  term  applied  to  the  sys- 
tem, or  practice,  of  mutual  support  that  the  Senators  give 
to  one  another,  especially  in  the  confirmation  courtesy  of 
of  appointments.  This  courtesy  arises  from  the  Senate, 
the  desire  of  the  Senators,  grown  into  a  habit,  to  defer  to 
and  support  one  another  where  their  personal  interests 
are  concerned.  It  helps  to  secure  for  a  Senator  a  great 
degree  of  personal  consideration  and  concession  from  his 
colleagues  so  that  a  Senator  can  have  about  what  he 
pleases  from  his  fellow-Senators.  This  courtesy  operates 
to  restrain  Senators  from  applying  the  previous  question 
to  shut  off  debate  by  their  colleagues.  A  Senator  may 
have  spoken  twenty  times  upon  a  measure,  and  may  have 
abused  the  Senate's  indulgence,  but  if  he  seeks  to  speak 

1  On  Senatorial  Courtesy  ;  see  also  p.  157. 

2  See  Foster  on  the  Constitution,  vol,  i.,  pp.  493-494  ;  Furber's  Precedent* 
Relating  to  the  Privileges  of  the  Senate;  the  Senate's  Proceedings  in  the 
summer  of  1894. 

15 


226  The  American  Republic 

again  and  again,  the  Senate,  out  of  "courtesy,"  will  not 
refuse  him  the  opportunity.  Courtesy  may  even  lead 
Senators  to  vote  for  a  measure  or  a  special  bill,  out  of 
desire  to  please  an  associate. 

But  the  chief  application  of  senatorial  courtesy  is  found 
in  the  support  Senators  give  to  one  another  in  order  to 
control  the  Executive  appointments.  When  the  Consti- 
tution conferred  upon  the  President  the  power  to  make 
appointments  and  on  the  Senate  the  power  to  confirm  ap- 
pointments, it  was  clearly  understood  that  the  President 
should  decide  who  should  be  appointed,  and  that  the  Senate 
should  check  him  in  the  exercise  of  this  power  only  when 
clearly  unfit  men  were  named  for  office.  It  was  not  in- 
tended that  Senators  should  dictate  appointments  or  even 
recommend  men  for  places.  It  is  now  one  of  the  under- 
standings of  our  politics,  an  illustration  of  our  unwritten 
constitution,  that  the  President's  appointments  to  Cabi- 
net positions  will  be  confirmed  in  the  Senate  without 
question.  The  President  has  a  perfectly  free  hand  in 
choosing  his  official  family,  and  unless  a  palpably  unfit 
nomination  be  made  the  Senate  will  confirm  without 
question.1  This,  it  was  supposed,  originally,  would  be 
the  way  with  all  presidential  appointments.  But  the 
Senate  soon  came  to  the  practice  of  rejecting  nominees  of 
the  President  on  any  ground  it  pleased, — because  of  party 
reasons,  or  because  it  disapproved  of  the  party  record  of 
the  nominee,  or  because  a  majority  of  Senators  wished  to> 
spite  the  President.  Then  the  Senators  began  to  claim 
for  themselves  the  right  to  dictate  appointments  or  re- 
movals in  their  respective  States. 

1  In  1869,  President  Grant  nominated  Mr.  A.  T.  Stewart,  the  merchant 
prince  of  New  York  City,  to  be  Secretary  of  the  Treasury.  Mr.  Stewart  as 
Secretary  would  have  had,  by  the  rulings  and  management  of  his  depart- 
ment, opportunity  to  affect  his  own  interests  as  a  heavy  importer.  Upon 
learning  that  the  Senate  would  refuse  to  confirm  the  nomination,  President 
Grant  withdrew  it. 


The  Senate  227 

"  When  I  came  into  public  life  in  1869,"  says  Senator  Hoar, 
"the  Senate  claimed  almost  entire  control  of  the  Executive 
function  of  appointment  to  office.  Every  Senator  with  hardly 
an  exception  seemed  to  fancy  that  the  national  officers  in  his 
State  were  to  be  a  band  of  political  henchmen  devoted  to  his 
personal  fortunes.  What  was  called  the  Courtesy  of  the  Senate 
was  depended  upon  to  enable  a  Senator  to  dictate  to  the  Ex- 
ecutive all  appointments  and  removals  in  his  territory."  l 

It  thus  came  to  pass  that  when  the  President  came  to 
appoint  men  to  office,  in  New  York  and  Ohio  for  in- 
stance, it  was  supposed  that  the  Senators  from  these 
States  would  know  best  whether  the  appointments  were 
fit  to  be  made.  If  these  Senators  advised  rejection,  their 
colleagues,  remembering  that  they  might  some  time  wish 
the  return  of  the  favor,  deferred  to  their  advice  and  re- 
jected the  nominations.  This  deference  of  the  Sena- 
tors for  one  another,  by  which  they  are  led  to  confirm  or 
reject  appointments  according  to  the  advice  of  the  Sena- 
tors from  the  States  in  which  the  appointments  are  made, 
is  the  most  prominent  manifestation  of  senatorial  cour- 
tesy. The  Senators,  standing  together  in  this  way,  can 
put  pressure  upon  the  President.  They  insist  that  before 
making  a  nomination  to  an  office  in  any  State  the  Presi- 
dent shall  consult  his  party  friends  from  that  State,  usu- 
ally the  party  Senators  and  Representatives,  and  be 
guided  by  their  wishes.  A  Congressman  will  recommend 
to  the  President  nominees  for  postmaster  in  the  various 
cities  and  towns  of  his  district,  and  the  Senators  will 
recommend  men  for  more  important  appointments  within 
the  State.8  Such  an  arrangement  for  the  Senators  bene- 
fits them  all  alike,  because  each  obtains  in  this  way  an 

'Senator  Hoar,  Congressional  Record,  53d  Congress,  vol.  xxv.,  p.  137, 
April  8,  1893.     Cited  in  Foster  on  the  Constitution. 

2  If  the  State  has  no  Senator  of  the  President's  party,  the  President  will 
be  apt  to  consult  the  party  Representatives  from  that  State,  or  the  chair- 
man of  the  party  State  Committee,  or  other  leading  party  men. 


228  The  American  Republic 

important  share  of  Presidential  patronage  within  his 
State.  "You  help  me  to  control  the  party  appointments 
in  my  State  and  I  will  help  you  to  control  the  party  ap- 
pointments in  your  State."  This  has  led  to  serious 
abuses,  until  "courtesy"  has  become  a  reproach.  Ex- 
ecutive appointments  are  practically  made  by  Senators 
and  Congressmen,  and  of  course  they  use  these  offices  to 
promote  or  secure  their  political  fortunes.  We  now  see 
what  would  have  been  to  Hamilton  and  Madison  and 
Washington  an  astounding  spectacle, — the  party  Senators 
meeting  at  a  State  capital  with  the  applicants  for  office, 
to  make  arrangements  for  the  distribution  of  the  offices. 
Who  shall  be  Postmaster  at  Vincennes  or  Schenectady? 
or  District  Attorney  for  Southern  Illinois?  This  purely 
Executive  business  the  Senators  now  undertake  to  deter- 
mine. Their  time  and  energy  are  largely  given  up  to 
satisfying  applicants  for  Executive  appointments,  and, 
through  their  placemen,  to  building  up  personal  political 
machines.  The  question  is,  not  whom  the  President  will 
appoint,  but  to  whom  the  Senators  and  Congressmen  will 
assign  the  Federal  offices  within  the  State.  The  Presi- 
dent has  virtually  surrendered  the  Executive  power  of 
appointment  to  members  of  the  national  legislature.  If 
the  President  refuses  to  be  guided  by  senatorial  dic- 
tation he  runs  the  risk  of  having  his  nominations  rejected 
by  a  combination  of  party  Senators  against  him.  Also, 
the  Senators,  if  disappointed  in  their  efforts  to  control  the 
Federal  patronage  within  their  respective  States,  would 
oppose  the  President  politically';  they  would  seek  to  em- 
barrass his  administration  and  to  defeat  his  renomination.1 

1  "  The  Senate  has  never  confirmed  the  nomination  of  a  postmaster 
against  the  will  of  the  Senator  who  lived  where  the  office  was  situated.  It 
insists  that  each  of  its  members  shall  select  the  man  who  delivers  to  him 
his  mail.  On  this  principle  President  Cleveland  conceded  to  Senator  Hill 
the  right  to  name  the  Postmaster  at  Albany,  New  York,  and  Sumner 
secured  from  Lincoln  the  appointment  to  the  Boston  Postoffice  of  the 
historian  Palfrey." — Foster  on  the  Constitution,  vol.  i.,  p.  493. 


The  Senate  229 

This  courtesy  of  the  Senate  could  not  have  come 
into  use,  of  course,  except  by  the  spoils  system, — i.  e., 
the  use  of  the  Federal  offices  for  party  and  personal  pur- 
poses. Under  this  use  of  the  spoils  through  senatorial 
courtesy,  the  State  is  regarded  as  the  rightful  domain  of 
the  feudal  baron, — the  party  Senator  from  that  State, — 
and  his  political  underlords  are  to  be  selected  by  him- 
self. These  appointees  must,  therefore,  be  the  Senator's 
men.  They  must  work  for  him,  either  to  secure  the 
nomination  of  acceptable  candidates  for  the  State  legis- 
lature, or,  if  the  Senator  be  a  candidate  for  President,  to 
secure  the  appointment  of  favorable  delegates  to  the  Na- 
tional Convention.  The  Presidents  have  usually  yielded 
to  this  senatorial  usurpation,  or  have  been  disposed  to 
accept  it  as  a  desirable  and  practicable  means  of  strength- 
ening the  party  within  the  several  States.  To  nominate 
a  man  to  an  important  office  within  a  State  who  is  dis- 
tasteful to  the  party  Senator  from  that  State,  or  who  is 
not  attached  to  the  Senator's  political  fortunes,  is  an 
offence  to  the  Senator;  and  by  senatorial  courtesy  the 
Senators  have  combined  to  defeat,  and  to  protect  them- 
selves against,  such  appointments.  This  was  the  cause 
of  the  famous  quarrel,  in  1881,  between  President  Gar- 
field and  Senator  Conkling  of  New  York.  The  President 
nominated  as  Collector  of  Customs  in  New  York  City,  an 
officer  having  many  hundred  subordinates,  a  gentleman 
distasteful  to  Senator  Conkling.  This  Customs  Collector 
could  not  be  depended  on  to  work  in  the  interest  of  the 
Conkling  wing  of  the  Republican  party  in  that  State. 
This  appointment  so  offended  Senator  Conkling  and  his 
Republican  colleague,  Senator  Piatt,  that,  as  a  protest, 
they  resigned  their  seats  in  the  Senate.  They  saw  that 
senatorial  courtesy  would  not  prove  strong  enough  to 
lead  a  majority  of  the  Senate  to  stand  by  them  for  the 
rejection  of  the  President's  nomination.  If  these  irritated 
Senators  had  been  sustained  by  re-election  to  the  Senate 


230  The  American  Republic 

by  the  New  York  Legislature  they  would  have  been  in  a 
position  seriously  to  embarrass,  if  not  to  disrupt,  the 
party  administration  in  New  York.  In  this  case  the  Sen- 
ators were  defeated  and  the  President  proved  too  strong 
for  senatorial  courtesy. 

In  President  Cleveland's  second  administration  Senator 
Hill  of  New  York  succeeded,  by  force  of  senatorial  cour- 
tesy, in  defeating  two  of  Mr.  Cleveland's  nominations  for 
Associate  Justiceships  of  the  Supreme  Court.  The  Sen- 
ator could  not  force  his  choice  on  the  President,  but  he 
could  for  a  time  defeat  the  confirmation  of  the  President's 
choice.  Finally,  the  President  nominated  Senator  White 
of  Louisiana,  and  then  senatorial  courtesy  worked  in  his 
favor;  for  it  is  the  uniform  custom  of  the  Senators  cour- 
teously to  confirm  the  appointment  of  one  of  their  own 
number,  and  that,  too,  without  the  usual  reference  to  the 
Judiciary  Committee  for  investigation. 

The  Dignity  of  the  Senate  relates  to  the  honor  and  re- 
spect which  the  Senate  assumes  by  its  forms  and  behavior. 
The  Dignity  It  seeks  to  cultivate  those  qualities,  or  aspects, 
of  the  Senate.  0f  the  Senate  designed  to  promote  the  position 
and  reverence  due  to  the  body.  It  involves  exclusion 
and  privilege.  It  requires  that  a  Senator's  honorable 
position  shall  be  respected.  Outsiders  and  spectators 
must  not  be  familiar.  They  may  not  only  not  take  part 
in  the  proceedings,  but  they  may  not  indicate  by  any  ap- 
plause or  sign  of  dissent  that  they  are  aware  that  there 
are  any  proceedings.  They  may  make  no  demonstration 
of  any  kind  to  influence  or  control  the  assembly.  Other- 
wise the  Senate  might  lose  its  personality,  individuality, 
and  dignity,  and  be  reduced  to  a  mass-meeting,  or  common 
political  gathering.  It  is  thought  that  in  late  years  the 
Senate  has  declined  in  this  respect,  as  it  has  frequently 
allowed  crowded  and  excited  audiences  to  applaud  and 
hiss  in  its  galleries ;  and  it  has  been  asked  whether  we  are 
approaching  the    time  when  the    gallery    loafer  will   be 


The  Senate  231 

allowed  to  arise  and  correct  the  orator  on  the  floor  of  the 
Senate,  or  interrupt  him  by  interjections. 

When  the  Senate  divides  or  votes  on  a  question,  the 
roll  of  the  Senate  is  called  alphabetically.  The  Senators 
may  vote  viva  voce,  or,  in  accordance  with  the  Divisions  in 
Constitution,  one  fifth  of  the  Senators  present  senate, 

may  demand  that  the  Yeas  and  Nays  be  entered  upon 
the  journal.  In  the  British  Parliament  the  members,  in 
a  division,  pass  into  the  lobby  and  are  counted  as  they 
pass  between  two  tellers. 

On  the  matter  of  impeachment  the  Constitu- 

Provisions  of 

tion  provides  that :  the  Constitu- 

(1)  The  Senate  shall  have  the  sole  power  to     tion  on  im- 

x    J  peachment. 

try  impeachments. 

When  sitting  for  this  purpose  the  Senators  shall  be  on 
oath  or  affirmation. 

(2)  The  House  has  the  sole  power  to  impeach. 

(3)  When  the  President  is  tried  on  impeachment  the 
Chief  Justice  shall  preside. 

(4)  A  two-thirds  vote  is  necessary  to  conviction. 

(5)  Judgment  in  case  of  conviction  extends  only  to  re- 
moval from  office  and  disqualification  to  hold  any  office 
of  honor,  trust,  or  profit  under  the  United  States;  the 
party  convicted  shall  be  liable  to  indictment,  trial,  judg- 
ment, and  punishment  according  to  law. 

(6)  The  President,  Vice-President,  and  all  civil  officers 
of  the  United  States  shall  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  treason,  bribery,  or 
other  high  crimes  and  misdemeanors. 

In  the  making  of  the  Constitution  there  were  objec- 
tions to  conferring  the  power  of  trying  impeachments 
upon  the  Senate :  (i)  It  would  unite  legislative  original  Objec- 
and  judicial   functions.     (2)  It  would   unduly  _tions  to  Mak- 

J  N    '  11  in8 the  Senate 

accumulate  power  in  the  Senate  and  tend  to  the  Court  in 
establish  an  aristocracy.  (3)  The  Senators  impeachment, 
would  judge  too  leniently  officers  for  whose  confirmation 


232  The  American  Republic 

they  had  voted.  (4)  Senators  might  be  called  upon  to 
try  one  another  for  corrupt  use  of  the  treaty-making 
power.1 

These  objections  were  all  answered  in  the  Federalist, 
and  experience  has  proven  them  untenable. 

It  was  suggested  in  the  Convention  of  1787  that  the 
Supreme  Court  would  be  a  better  tribunal  than  the  Sen- 
The  supreme  ate  f°r  impeachment  trials,  especially  for  the 
court  Sug-  trial  of  the  President ;  for,  if  the  Senate  were 
court  oT t  '  allowed  to  remove  the  President  on  impeach- 
impeachment.  ment  preferred  by  the  House,  this  would  make 
the  Executive  too  dependent  on  the  legislative  depart- 
ment, and  would  interfere  with  the  President's  power  to 
check  the  legislature.  It  was  answered  that  the  judges 
would  not  form  a  competent  court  for  presidential  im- 
peachment, as  they  were  dependent  on  the  President  for 
appointment.  It  was  understood,  when  the  Senate  was 
given  the  power  to  try  impeachments,  that  the  Senators 
in  im  each-  were  on  their  oaths  to  act,  not  from  any  po- 
ment  Cases  litical  or  party  bias,  but  entirely  in  a  judical 
to^ctln*!  S  capacity, — as  impartial  judges.  That  the  Sen- 
Pureiy  judicial  ate  may  be  depended  upon  to  show  a  fair  and 
judicial  disposition  in  this  respect  was  demon- 
strated in  the  celebrated  impeachment  trial  of  President 
Johnson.  Eleven  Republican  Senators  voted,  not  for 
conviction,  as  party  pressure  was  urging  them  to  do,  but 
for  acquittal,  as  they  judged  the  law  and  the  evidence 
demanded. 

Only  the  President,  Vice-President,  and  "civil  officers" 
of  the  United  States  can  be  impeached.  Who  are  "civil 
who  are  officers  of  the  United  States"?  The  word 
impeachable ?" civji  "  js  used  in  contradistinction  to  "mili- 
tary," consequently  officers  of  the  army  and  navy  are 
exempt  from  impeachment.     The  reason  for  exempting 

1  On  the  subject  of  impeachment,  consult  Foster  on  the  Constitution,  and 
the  Federalist,  Nos.  65  and  66. 


The  Senate  233 

military  and  naval  officers  is  that  they  are  subject  to  trial 
and  punishment  by  military  law  and  usages.1 

Senators  and  Representatives  are  not  "civil  officers  of 
the  United  States  "  and  are  therefore  not  impeachable.2 
This  was  settled  in  Blount's  case  in  1798.     The 

.  .  ,  Senators  and 

only  remedy  for  the  misconduct  of  a  member      Represent- 
of  either  House  of  Congress  during  his  term        atives  Not 

°  Impeachable. 

of  office  is  expulsion  by  his  colleagues.  In 
Blount's  case,  while  impeachment  was  pending,  he 
was  expelled  from  the  Senate  for  the  offence  charged 
against  him.  After  his  expulsion  Blount  pleaded  in  his 
impeachment  trial  that  the  Senate  had  no  jurisdiction. 
The  Senate  sustained  this  plea  by  a  vote  of  fourteen  to 
eleven,  and  the  impeachment  was  dismissed.  Wharton 
says:  "In  a  legal  point  of  view  all  that  this  case  decides 
is  that  a  Senator  of  the  United  States  who  has  been 

I  Story  on  the  Constitution,  §  792,  cited  by  Foster,  p.  570. 

II  The  Congressmen  represent  the  people  ;  they  receive  their  commissions 
directly  from  the  people.  They  are  the  officers  of  the  people  of  a  State, 
and  not  of  the  United  States.  They  may  do  official  duty  with  reference  to 
the  United  States,  as  some  other  State  officers  do  now  ;  but  they  are  still 
officers  of  the  State.  The  Senators  represent  the  sovereignty  of  the  several 
States  ;  they  represent  the  States,  and  as  such  are  officers  of  the  States  and 
not  of  the  United  States.  So  that  a  Senator  is  not  impeachable  in  that  he 
is  not  an  officer  of  the  United  States.  A  Congressman  is  not  impeachable, 
in  that  he  is  not  an  officer  of  the  United  States,  but  an  officer  of  the  people 
of  a  State.  It  leaves  it,  then,  that  those  cognizable  "  before  this  Court  are 
only  those  who  are  the  government  officers  of  the  United  States  ;  who  are 
officers  alike  for  every  State  ;  who  receive  their  powers  alike  from  every 
State,  directly  or  indirectly  ;  who  are  commissioned  by  the  people  of  all 
the  States,  through  some  person  representing  the  people  of  all  the  States. 
So  that  the  officers  of  the  United  States  are  those  included  in  the  Executive 
department  of  the  Government,  and  every  officer  of  that  Executive  depart- 
ment we  conceive  to  be  impeachable  before  this  tribunal."— Manager  G. 
A.  Jenks  in  the  Belknap  case,  p.  172  ;  cited  by  Foster,  p.  573.  F°r  the  op- 
posing view  Foster  cites  "  the  able  argument  of  Bayard  and  Harper  in 
Blount's  case,"  Wharton's  State  Trials,  pp.  266-272,  302-314.  In  the 
conventions  that  ratified  the  Constitution,  C.  C.  Pinckney  and  Randolph 
spoke  as  if  a  Senator  could  be  impeached.— Elliot's  Debates,  vol.  iv.,  pp. 
263-265  ;  vol.  hi.,  pp.  202,  402. 


234  The  American  Republic 

expelled  from  his  seat  is  not,  after  such  expulsion,  subject 
to  impeachment."  ' 

' '  That  the  members  of  either  House  of  Congress  should  be 
impeached  by,  or  before,  the  other,  or  that  an  officer  whose 
duties  are  legislative  should  be  called  in  question  elsewhere 
for  official  acts,  could  never  be  tolerated,  and  is  repugnant  to 
the  nature  of  the  office  itself."  2 

Can  an  officer  of  the  United  States  be  impeached  after 
he  is  out  of  office  for  acts  done  while  he  was  in  office? 
Ma  an  officer  ^aY  ne  escaPe  impeachment  by  resigning? 
Escape  im-  The  answer  to  these  questions  will  depend 

RedgringV>y  UP°n  the  VieW  taken  °f  the   PurPose  and  SCOpe 

May  an  ex-      of  impeachment. 

top^ached  ?  One  view  holds  that  civil  officers  only  are  im- 
or  a  Private  peachable  for  indictable  offences  only,  and  that 
while  actually  in  office. 
The  other  view  holds  that  impeachment  may  apply 
even  to  political  offences  which  cannot  be  reached  by  the 
courts,  and  may  even  extend  to  offences  against  the  peace 
and  welfare  of  the  State  committed  by  private  citizens.3 
This  would  give  a  very  wide  extent  to  the  power  of  im- 
peachment, and  would  put  a  very  dangerous  weapon  in 
the  hands  of  a  dominant  party  as  against  a  rising  leader 
of  the  opposition  whom  the  party  in  power  deemed  to  be 

1  Wharton's  State  Trials,  p.  317,  cited  by  Foster. 

2  Hon.  George  F.  Hoar,  one  of  the  House  Managers  in  the  Belknap  case. 

3  "  Let  us  suppose  that  a  citizen,  not  in  office,  but  possessed  of  extensive 
influence  arising  from  popular  acts,  from'  wealth  or  connections,  actuated 
by  strong  ambition  and  aspiring  to  the  first  place  in  the  Government,  should 
conspire  with  the  disaffected  of  our  own  country,  or  with  foreign  intriguers, 
by  illegal  artifice,  corruption,  or  force,  to  place  himself  in  the  presidential 
chair.  .  .  .  What  punishment  could  be  better  calculated  to  secure  the 
peace  and  safety  of  the  State  than  disqualification  ?  .  .  .  Such  offences 
may  be  committed  as  well  by  persons  out  of  office,  and  it  may  be  as  im- 
portant to  prevent  such  persons  from  getting  into  office  as  to  remove  them 
when  in." — Manager  Bayard  in  Blount's  case,  p.  567  in  Foster  on  the 
Constitution. 


The  Senate  235 

dangerous.  The  best  authorities  are  inclined  to  accept 
the  view  imposing  the  more  restricted  scope  to  this  power. 
Whether  an  officer  can  escape  impeachment  by  resign- 
ing was  discussed  at  length  in  the  Belknap  case.1  In  1876, 
it  was  found  that  the  Secretary  of  War,  Wil- 
liam W.  Belknap,  had  been  receiving  from  Escape  im- 
$6000  to  $12,000  annually  from  the  proceeds  peachment  by 

T      , .  ii-  1.1111        Resigning  ? 

of  an  Indian  post-tradership  to  which  he  had 
appointed  the  Indian  agent.      Belknap,   as  soon  as  this 
bribery  was  discovered,  resigned,  and  the  President  ac- 
cepted his  resignation.     A  few  hours  after  his    The  Belknap 
resignation,  five  articles  of  impeachment  were  Case- 

preferred  against  him,  each  charging  him,  in  substance, 
with  the  acceptance  of  bribes.  Belknap's  attorneys  en- 
tered the  plea  that  at  the  time  of  the  impeachment  he 
was  not  an  officer  of  the  United  States,  and  therefore  the 
Senate  had  no  jurisdiction.  This  plea  was  overruled  by 
a  majority  of  the  Senate,  but  the  majority  was  less  than 
two  thirds, — thirty-seven  to  twenty-nine.  On  the  final 
vote  the  same  Senators  who  voted  to  sustain  the  plea 
voted  "Not  guilty,"  on  the  ground  of  lack  of  jurisdiction 
pleaded  by  Belknap's  attorneys.  So,  while  a  majority  of 
the  Senate  held  that  an  officer  could  not  escape  impeach- 
ment by  resigning,  yet  more  than  a  third  of  the  Senate 
refused  on  that  ground  to  vote  for  conviction.  The  effect 
was  that  Belknap  by  resigning  escaped  the  punishment  of 
impeachment,  though  the  majority  of  the  Senate  opposed 
this  view.  This  precedent,  however,  may  not  be  decisive 
in  future  cases.2 

Opposed  to  the  view  that  an  ex-officer  or  a  private  citi- 
zen may  be  impeached,  it  is  said  that  the  ob-  Argumentas 
ject  of  impeachment  is  to  remove  a  corrupt  or  to  the  Scope  of 
unworthy  officer ;  if  the  term  has  expired  or  he  is  mpeac  ment' 
no  longer  in  office  that  object  is  attained,  and  the  reason 

1  Foster  on  the  Constitution,  p.  574  et  seq. 
3  Forty-fourth  Congress,  first  session. 


250  The  American  Republic 

for  his  impeachment  no  longer  exists ;  that  the  conjunction 
in  the  Constitution  of  removal  and  disqualification  implies 
that  removal  precedes  further  punishment ;  if  the  officer 
has  resigned  he  cannot  be  removed,  and  therefore  cannot 
be  punished ;  that  if  a  private  citizen  can  be  impeached 
one  day  after  his  exit  from  office  he  may  be  at  any  time 
in  his  subsequent  life;  that  this  would  put  a  terrible 
weapon  in  the  hands  of  a  dominant  political  party ;  that 
the  House  of  Representatives  in  the  Belknap  case  had 
dropped  proceedings  when  the  accused  had  resigned 
pending  investigation  to  determine  whether  the  acts  were 
impeachable. 

On  the  other  hand,  it  is  urged  that  if  an  officer,  palpa- 
bly guilty  of  fraud  and  malfeasance,  can  escape  trial  and 
punishment  by  resigning,  this  seems  to  make  the  im- 
peachment clause  nugatory  and  absurd ;  that  while  there 
is  room  for  argument  as  to  whether  an  officer  can  be  im- 
peached after  he  is  out  of  office,  it  should  be  perfectly 
clear  that  to  escape  prosecution  and  penalty  by  a  vol- 
untary resignation  cannot  be  permitted;  it  is  especially 
desirable  that  such  an  officer  should  be  forever  after 
disqualified  from  holding  any  office  of  profit  or  trust. 

The  question  has  been  raised  whether  the  Senate  has 
the  power  to  suspend  the  accused  from  office  during 
the  trial.  In  President  Johnson's  trial,  in  1868,  Senator 
Sumner  maintained  that  the  Senate  could  suspend  John- 
son from  the  presidential  office  pending  the  trial.  Ac- 
cording to  Sumner  the  reason  the  Constitution  required 
the  Chief  Justice  to  preside  in  such  a  case  was  not  be- 
cause the  Vice-President  was  an  interested  party,  but  be- 
cause he  was  supposed  to  be  exercising  the  President's 
functions. 

It  has  been  asked  whether  a  subsequent  Congress  could 
reverse  an  unjust  conviction.  This  question  is  purely 
academic ;  it  has  never  been  raised  in  practice,  and  it  will 
probably  never  be  necessary  to  raise  it. 


The  Senate  237 

There  have  been  seven  impeachment  trials  before  the 
United  States  Senate.  Only  two  of  these  have  resulted 
in  convictions.  Historlc  Cases 

1.  Blount's  Case. — On  July  7,  1797,  William  of  impeach- 
Blount,  Senator  from  Tennessee,  was  im-  America! 
peached  by  vote  of  the  House  for  high  crimes 

and  misdemeanors.  On  the  following  day  he 
was  expelled  from  the  Senate.  Articles  of  impeachment 
were  not  preferred  at  the  bar  of  the  Senate  until  the  session 
of  1798.  Blount  was  charged  with  creating  and  setting  on 
foot,  within  the  jurisdiction  and  territory  of  the  United 
States,  a  hostile  military  expedition  against  the  territories 
and  dominions  of  Spain  in  the  Floridas  and  Louisiana,  for 
the  purpose  of  wresting  the  same  from  Spain  for  the  bene- 
fit of  Great  Britain  with  which  Spain  was  then  at  war ;  he 
was  charged,  also,  with  inciting  the  Creek  and  Cherokee 
Indians,  then  inhabiting  the  territory  of  the  United 
States,  to  commence  hostilities  against  Spain  in  the 
Floridas  and  Louisiana,  in  violation  of  the  peace  and 
treaty  existing  between  Spain  and  the  United  States;  he 
was  further  charged  with  conspiring  to  alienate  and  divert 
the  confidence  of  the  Indians  from  the  agent  and  inter- 
preter appointed  by  the  President. 

The  impeachment  was  managed  for  the  House  by 
James  A.  Bayard  and  Robert  G.  Harper.  Jared  Inger- 
soll  and  A.  J.  Dallas,  in  defence  of  Blount,  entered  a  plea 
that  the  Senate  had  no  jurisdiction,  since  Blount  was  not 
then,  nor  at  the  time  of  the  offences  charged,  a  civil  officer 
of  the  United  States.  This  plea  was  sustained  by  the 
Senate  and  consequently  Blount  was  acquitted.1 

2.  The  Pickering  Case. — On  March  3,  1803,  the  House 
impeached  John  Pickering,  a  Federal  District  Judge  for 
the  District  of  New  Hampshire.     He  was  charged  with 

1  Blount  returned  to  Tennessee,  was  elected  to  the  State  Senate,  was  made 
Speaker  of  that  body,  and  was  about  to  be  elected  governor  of  the  State  at 
the  time  of  his  death. — Foster  on  the  Constitution,  vol.  i.,  pp.  530-531. 


238  The  American  Republic 

making  decisions  contrary  to  law,  and  with  drunkenness 
and  profanity  on  the  bench.  Judge  Pickering's  son  en- 
Pkkering's  tered  a  plea  of  insanity.  The  House  managers 
Case.  h^d  that  the  insanity  was  the  result  of  habitual 

drunkenness.  He  was  convicted  and  removed  by  a  party 
vote,  the  Federalists  voting  for  Pickering,  but  the  dis- 
qualification to  hold  office  thereafter  was  not  imposed. 

3.  The  Case  of  Chase. — Samuel  Chase,  one  of  the  Jus- 
tices of  the  Supreme  Court,  was  impeached  before  the 

Senate  in  1805.  Chase  was  a  partisan  judge 
who  had  the  habit,  then  not  uncommon  in 
England  and  America,  of  indulging  in  political  harangues 
in  his  jury  charges.  He  had  incensed  the  Jeffersonian 
Republicans  in  the  House  by  his  conduct  in  certain  trials 
under  the  Sedition  Law.  He  was  accused  of  arbitrary 
conduct,  of  refusing  a  fair  trial  to  the  accused,  of  an- 
nouncing that  his  mind  was  already  made  up  in  cases  to 
come  before  him,  and  of  casting  "highly  indecent  and 
extrajudicial  "  reflections  upon  the  Government.  Chase 
was  found  not  guilty  on  most  of  these  charges,  though 
the  case  had  the  effect  of  leading  the  Democratic-Repub- 
lican forces  to  favor  a  change  in  the  tenure  of  Federal 
judges. 

4.  Peck's  Case. — In  1830,  Judge  Peck,  of  the  Federal 
District  Court  for  Missouri,  was  tried  on  articles  charging 

him    with    unduly  punishing  an  attorney    for 
contempt  of   court.     The  attorney  had  pub- 
lished a  criticism  of  one  of  the  Judge's  decisions.     Peck 
was  acquitted. 

5.  The  Humphreys  Case. — At  the  outbreak  of  the  Civil 
War,  Judge  West  H.  Humphreys,  Judge  of  the  Federal 
Humphreys's  District  Court  for  Tennessee,  though  actively 
Case.  engaged  in  the  rebellion,  did  not  resign.  His 
position  was  vacated  by  impeachment.  The  charges 
against  him  were  based  on  a  secession  speech  made  by 
him  in  Nashville,  December  29,  i860,  and  his  acceptance 


The  Senate  239 

of  the  office  of  Confederate  Judge.  He  was  convicted  by 
unanimous  vote  of  the  Senate,  June  26,  1862. 

6.  The  Impeachment  of  President  Johnson,  1868. — The 
history  of  this  case  is  well  known.  It  is  the  only  case  of 
impeachment  proceedings  against  a  Presi-  impeachment 
dent.  The  prosecution  arose  on  account  of  of  J°hnson- 
the  violent  controversies  arising  on  Reconstruction,  and 
was  inspired  largely  by  party  motives.  The  charges 
against  the  President  were  based  chiefly  upon  his  alleged 
violations  of  the  Tenure  of  Office  Act.1  Johnson  escaped 
conviction  by  one  vote.  Seven  Republican  Senators 
voted  against  conviction. 

7.  The  Belknap  Case,  1876.*  The  Belknap 
The  Senator's  term  is  for  six  years,  and  not  Case- 

at  the  pleasure  of  the  legislature  of  his  State.  Originally 
some  thought  this  too  long  a  term,  that  the  Senators 
would  forget  their  obligations  to  their  State, 

I  he  oix  Y63TS 

and  it  was  urged  that  a  State  legislature  should  Term:  Sena- 
have  the  right  to  recall  a  Senator.3  Sometimes  BJ|^d"y^* 
a  legislature  passes  a  resolution  of  instructions  instructions  of 
directing  its  Senators  how  to  vote  on  certain  their  states- 
measures,  or  a  resolution  of  censure,  or  a  resolution  re- 
questing a  Senator  to  resign  as  a  misrepresentative  of  his 
State ;  but  a  Senator  is  in  no  way  bound  to  regard  such 
resolutions. 

The  belief  in  the  right  of  a  State  to  instruct  its  Sen- 
ators, and  that  the  Senators  should  be  bound  by  these 
instructions  or  resign,  was  formerly  quite  com-  state  Instruc. 
mon.     Such  was  the  prevalent  idea  in  the  early  tion  of 

part  of  the  nineteenth  century  of  the  relation  senators. 
of  a  representative  to  his  constituents.  In  1808,  John 
Quincy  Adams  resigned  as  Senator  from  Massachusetts 
because  his  vote  on  the  Embargo  in  support  of  Jefferson's 

1  See  p.  187. 

1  The  facts  in  the  Belknap  case  are  set  forth  on  p.  235. 

8  See  Elliot's  Debates,  vol.  ii.,  p.  545. 


240  The  American  Republic 

administration  was  in  opposition  to  the  wishes  of  his  con- 
stituents. In  1828,  a  Senator  from  Kentucky  spoke 
against  the  "Tariff  of  Abominations,"  but  felt  himself 
bound  to  vote  for  it  "as  the  organ  of  the  State  of  Ken- 
tucky." '  In  1836,  John  Tyler  resigned  his  place  in  the 
Senate  because  the  Virginia  legislature  had  instructed  him 
to  vote  in  favor  of  the  Expunging  Resolution,  which  he 
could  not  conscientiously  do.2  This  theory  of  the  bind- 
ing force  of  instructions  regards  the  Senators  as  ambassa- 
dors (and  the  Representatives  merely  as  delegates)  who 
must  look  for  instructions  to  the  governments  from 
which  they  are  accredited.  Early  Senators  often  re- 
garded themselves  in  this  light.  Senator  Tazewell  of 
Virginia  declined  President  Jackson's  offer  of  a  place  in 
his  Cabinet,  and  said:  "Having  been  elected  a  Senator,  I 
would  as  soon  think  of  taking  a  place  under  George  IV., 
if  I  were  sent  as  a  Minister  to  his  Court,  as  I  would  to 
take  a  place  in  the  Cabinet."  This  idea  of  the  Senator's 
office  is  now  abandoned.  No  one  now  expects  a  Senator 
to  surrender  his  individual  judgment  and  be  moved  from 
the  course  that  he  thinks  wisest  because  of  his  State 
legislature's  censure  or  instructions.  In  fact,  the  Sena- 
tors, owing  to  the  length  of  their  term,  feel  less  moved  by 
such  instructions  than  members  of  the  House  do. 

On  January  27, 1898,  the  Legislature  of  Kentucky  asked 
Senator  Lindsay  to  resign,  as  he  was  misrepresenting  his 
party  and  State  on  the  money  question.  The  Senator, 
of  course,  refused.      He  said: 

"  I  do  not  exercise  my  senatorial  duties  subject  to  legislative 
supervision,  nor  hold  my  place  at  the  legislative  will.  I  repre- 
sent, not  a  party  merely,  but  the  people  of  Kentucky.  My 
term  of  service  is  fixed  by  the  Constitution  of  the  United 
States.     It  cannot  be  abridged  by  the  action  of  the  Kentucky 

1  Benton's  Thirty  Years,  vol.  i.,  p.  95,  cited  by  Foster  on  the  Consti- 
tution. 2  Foster  on  the  Constitution,  vol.  i.,  p.  496. 


The  Senate  241 

legislature.  Resolutions  of  legislatures  can  not  relieve  a  Sen- 
ator of  his  responsibilities.  His  own  judgment  and  con- 
science must  guide  his  conduct.  I  am  a  Senator  of  the  United 
States.  Public  questions  affecting  the  interest  of  the  whole 
country  must  be  considered  from  the  standpoint  of  broadest 
patriotism,  not  merely  from  consideration  of  local  favor.  If 
a  Senator  so  acting  is  to  be  driven  from  his  place  by  his  State 
legislature,  the  dignity  and  independence  of  the  Senate  will 
soon  be  things  of  the  past."  ] 

Of  course,  public  sentiment  in  a  Senator's  State  will 
always  be  a  powerful  factor  in  determining  his  course,  as 
it  should  be ;  but  the  Senator  must  be  free  to  resist  this 
sentiment  when  he  feels  that  the  public  are  wrong  and  he 
is  right.3 

Usually  the  small  States  retain  their  Senators  in  con- 
secutive service  longer  than  the  large  States.  The  famous 
Senators  in  our  history  have  been  those  of  long  service, 
— Senators  Benton  of  Missouri,  Bayard  of  Delaware, 
Sumner  and  Webster  of  Massachusetts,  Seward  of  New 
York,  Morrill  and  Edmunds  of  Vermont,  and  Sherman 
of  Ohio  are  illustrations  in  point.2 

The  following  reasons  have  been  given  by 

.  *>  "'Mr.  Bryce  on 

Mr.  Bryce  why  the  American  Senate  has  the  Success  of 
proven  so  successful  and  honorable  a  body  :         the  A™encan 

1.  It  is  representative. — Most  upper  houses 

in  European  legislatures  are  hereditary.  Our  Senate  is 
elective  and  popular;  that  is,  it  can  speak  with  the  au- 
thority of  the  people  and  claim  to  represent  the  people, 
as  well  as  the  lower  House. 

2.  //  is  convenient  in  size.  — A  small  body  educates  its 
members  better  than  a  large  one.  Each  member  has 
more  to  do,  can  more  easily  master  the  business  of  the 

1  Senate  Record,  Feb.  4,  1898. 

2  On  instructions  to  Senators  and  Representatives  see  North  American 
Review,  vol.  iv.,  p.  223  ;  Palfrey,  Niles  Register,  vol.  xxviii.,  pp.  193,  200, 
216;  Foster  on  the  Constitution,  vol.  i.,  p.  495. 


242  The  American  Republic 

body,  and  is  given  a  livelier  sense  of  the  significance  of 
his  own  action  in  bringing  about  collective  action.  A 
small  body  can  act  together  better  and  more  surely  than 
a  large  one,  and  its  members  are  apt  to  have  more  of  the 
spirit  of  the  body.  Its  members  are  more  apt  to  stand 
together  against  the  other  house.  For  this  reason  the 
Senate  can  generally  defeat  the  House  in  conference  on 
matters  on  which  they  disagree. 

3.  The  permanence  of  the  Senate  and  the  lengtli  of  term. — 
The  Senator  learns  his  work  and  is  relieved  of  biennial 
anxiety  for  re-election. 

It  is  the  smallness  and  permanence  of  the  Senate,  more 
than  anything  else,  that  have  contributed  to  the  superior 
intellectual  quality  of  its  members. 

"  The  true  explanation  of  its  capacity  is  to  be  found  in  the 
superior  attraction  which  it  has  for  the  ablest  and  most  ambi- 
tious men.  A  Senator  has  more  power  than  a  member  of  the 
House,  more  dignity,  a  longer  term  of  service,  a  more  inde- 
pendent position.  Hence  every  Federal  politician  aims  at  a 
Senatorship,  and  looks  on  the  place  of  Representative  as  a 
stepping-stone  to  what  may  fairly  be  called'  an  upper  House, 
because  it  is  the  House  to  which  Representatives  seek  to 
mount."  ' 

4.  It  is  not  subject  to  rapid  fluctuations  of  opinion. — 
This  is  because  of  its  permanence  and  the  longer  terms 
of  the  Senators. 

The  Senate  thus  forms  a  stable  bulwark  against  popular 
agitations.  The  majority  of  the  Senators  always  have  four 
years  more  to  serve.  Within  that  time  public  feeling 
may  change.  The  Senate  is  less  influenced  than  the 
House  by  a  fleeting  popular  sentiment  and  appreciates 
more  highly  the  importance  of  continuity  in  policy. 
"The  Senate  has  therefore  usually  kept  its  head  better 
than  the  House.     It  has  expressed  more  adequately  the 

1  Bryce,  vol.  i.,  p.  116. 


The  Senate  243 

judgment  as  contrasted  with  the  emotion  of  the  nation. 
In  this  sense  it  does  constitute  a  check  and  balance  in  the 
Federal  Government." 

Of  the  three  great  functions  which  the  Fathers  of  the 
Constitution  meant  it  to  perform,  the  first,  that  of  secur- 
ing the  rights  of  the  smaller  States,  is  no  longer  impor- 
tant ;  while  the  second,  that  of  advising  or  controlling  the 
Executive  in  appointments  as  well  as  in  treaties,  has 
given  rise  to  evils  almost  commensurate  with  its  benefits. 
But  the  third  duty  is  still  discharged,  for  "the  propensity 
of  a  single  and  numerous  assembly  to  yield  to  the  impulse 
of  sudden  and  violent  passions"  is  frequently,  though  not 
invariably,  restrained.1 

The  Senate  has  been  criticised  as  a  "millionaire's  club," 
because  it  contains  so  many  men  of  very  great  wealth. 
Mr.  Bryce  says : 

"  Some,  an  increasing  number,  are  Senators  because  they 
are  rich ;  a  few  are  rich  because  they  are  Senators ;  while  in 
the  remaining  cases  the  same  talents  which  have  won  success 
in  law  or  commerce  have  brought  their  possessor  to  the  top  in 
politics  also.  The  great  majority  are  or  have  been  lawyers. 
Some  regularly  practise  before  the  Supreme  Court.  Complaints 
are  occasionally  levelled  against  the  aristocratic  tendencies 
which  wealth  is  supposed  to  have  bred,  and  sarcastic  references 
are  made  to  the  sumptuous  residences  which  Senators  have 
built  on  the  new  avenues  at  Washington.  While  admitting 
that  there  is  more  sympathy  for  the  capitalist  class  among  the 
rich  men  than  there  would  be  in  a  Senate  of  poor  men,  I  must 
add  that  the  Senate  is  far  from  being  a  class  body  like  the 
upper  Houses  of  England  or  Prussia  or  Spain  or  Denmark. 
It  is  substantially  representative,  by  its  composition  as  well  as 
by  its  legal  delegation,  of  all  parts  of  American  society;  it  is 
far  too  dependent,  and  far  too  sensible  that  it  is  dependent, 
upon  public  opinion,  to  dream  of  legislating  in  the  interest  of 
the  rich."  a 

•Bryce,  vol.  i.,  p.  123.  'Bryce,  vol.  i.,  pp.  1 19-120. 


244  The  American  Republic 

REFERENCES  ON  THE  SENATE 

1.  "The  Senate  and  the  House  of  Lords,"  J.  C.  Hopkins  in  American 

Journal  of  Politics,  vol.  v.,  p.  461  ;  R.  Ogden  in  the  Nation,  vol. 
lvii.,  p.  184. 

2.  "  The  Senate  and  the  Silver  Question,"  Spectator,  vol.  lxxi.,  p.  506. 

3.  "  The  Attack  on  the  Senate,"  C.    D.  Warner,    Century,  vol.  xxvi., 

P-  374- 

4.  "  The  Decline  of  the  Senate,"  M.  M.   Trumbull,   Open  Court,  vol. 

vii.,  p.  3S95. 

5.  "  The  Dignity  of  the  Senate,"  Nation,  vol.  lxii.,  p.  230. 

6.  "The    Dilatory    Senate   and   Trade    Depression,"   L.   WindmOller, 

Forum,  vol.  xvii.,  p.  326. 

7.  "  Freedom    of  Debate   in    the    Senate,"  E.    N.   Dingley,    American 

Journal  of  Politics,  vol.  iv.,  p.  49. 

8.  "Has   the  Senate  Decayed?"     Goldwin  Smith,   Saturday  Review, 

vol.  lxxxi.,  p.  467. 

9.  "  The  Senate  in  the  Light  of  History,"  Forum,  vol.  xvi.,  p.  272. 

10.  "Is  the  Senate  Unfairly  Constituted?"      S.   E.  Moffett,    Political 

Science  Quarterly,  vol.  x.,  p.  448. 

11.  "  Ought  the  Senate  to  be  Abolished?  "     H.  Von  Holst,  Monist,  vol. 

v.,  p.  1. 

12.  "  Ought  the  Senate  to  be  Reformed?"     M.  D.  Conway,  Monist,  vol. 

v.,  p.  223. 

13.  "  The  Senate  as  our  House  of  Lords,"  J.  F.  Hume,  American  Journal 

of  Politics,  vol.  iv.,  p.  348. 

14.  "  The  Rights  of  the  Senate,"  Soc.  Econ.,  vol.  v.,  p.  271. 

15.  "Shall  the  Senate   Rule  the  Republic?"     H.  Von  Holst,  Forum, 

vol.  xvi.,  p.  263. 

16.  "  The  Situation  in  the  Senate"  (Oct.,  1893),  Public  Opinion,  vol.  xvi., 

p.  68. 

17.  "  The   Struggle   in   the  Senate,    1893,"   Wm.    Stewart   and   H.   C. 

Lodge,   in  North  American  Review,  vol.  clvii.,  p.  513  ;    Nation, 
vol.  lvii.,  p.  262. 

18.  "The  West  in  the  Senate,"  W.  H.  Bryant,   Nation,  vol.  lvii.,  p. 

268. 

19.  "Choice  of  United  States  Senators,"  J.    H.    Flagg,  New   England 

Magazine,  vol.  xiv.,  p.  190. 

20.  "  Election  of  Senators  by  the  People,  "  Arena,  vol.  x.,  p.  453  ;  Forum, 

vol.  xviii.,   p.  270;    Johns  Hopkins    University  Studies,  vol.  xi.,  p. 
547  ;  Nation,  vol.  liv.,  p.  44  ;  Forum,  vol.  xxi.,  p.  385. 

21.  "Mode  of  Elections  to   the   Senate,"  Public   Opinion,   vol.   xiv.,    p. 

391- 

22.  "Senate:  Its  Origin,   Personnel,  and  Organization,"  W.  A.  Peffer, 

North  Afnerican  Review,  vol.  clxvii.,  p.  48. 


The  Senate  245 

23.  "  Senate :    Its   Privileges,    Powers,    and    Functions,    Its    Rules    and 

Methods  of  Doing  Business,"  W.  A.  Peffer,  North  American  Re- 
view, vol.  clxvii.,  p.  176. 

24.  "  Decline  of  the  Senate,"  Outlook,  vol.  lv.,  p.  1069. 

25.  "Duty  of  the  Minority  in  the  Senate,"  American  Magazine  of  Civics, 

vol.  ix.,  p.  527. 

26.  "American  Senate  and  the  House  of  Lords,"  Spectator,  vol.  lxxviii., 

P-  43i- 

27.  "The  Conduct  of  Business  in  Congress,"  Senator  George  F.  Hoar, 

North  American  Review,  vol.  cxxviii. 


CHAPTER   V 

THE  HOUSE  OF  REPRESENTATIVES 

CONGRESS,  or  the  National  Legislature,  as  we  have 
seen,  consists  of  two  Houses,  the  Senate  and  the 
House  of  Representatives.  The  Senate  represents  the 
States,  the  House  represents  the  nation  on  the  basis  of 
population.  This  is  the  basic  distinction  between  the  two 
bodies.  Hence,  the  House  is  called  the  popular  branch 
of  Congress.1 

The  members  of  the  House,  or  the  Representatives, 
are  chosen  every  second  year  by  the  people  of  the  several 
States. 

Those  may  vote  for  Representatives  who  are  qualified 
by  their  State  laws  to  vote  for  the  most  numerous  branch 
of  their  State  legislature.     Thus,  the  qualifica-        __,. 

°  *  Wno  may 

tions  for  voters  who  elect  the  members  of  the  Vote  for  Re- 
National  House  are  fixed  by  the  laws  of  thePresena 
respective  States.  The  suffrage  is  more  restricted  in 
some  States  than  in  others,  but  generally  the  States  pro- 
vide for  manhood  suffrage.  However,  they  are  left  free 
to  do  as  they  please  in  the  matter,  except  that  no  State, 
according  to  the  Fifteenth  Amendment,  may  deny  the 

1  The  members  of  the  House  are  called  Representatives,  or  Congress- 
men ;  the  members  of  the  Senate  are  called  Senators.  The  word  "  Con- 
gress" is  sometimes  applied  merely  to  the  lower  House,  as,  "Mr.  A.  B. 
is  a  candidate  for  Congress."  Though  the  Senate  is  a  branch  of  Congress 
it  is  never  designated  by  any  other  term  than  Senate,  nor  its  members  by 
any  other  term  than  Senators.  But,  constitutionally  speaking,  when  it  is 
said  that  Congress  has  certain  powers,  both  Houses  are  included. 

246 


The  House  of  Representatives        247 

right  of  suffrage  on  account  of  race,  color,  or  previous 
condition  of  servitude.  It  is  also  provided,  by  the  Four- 
teenth Amendment,  that  if  the  right  to  vote  for  President 
or  Representatives  is  denied  to  any  of  the  male  inhab- 
itants of  a  State,  being  twenty-one  years  of  age  and  citi- 
zens of  the  United  States,  except  for  rebellion  or  crime, 
the  basis  of  representation  in  that  State  shall  be  reduced  in 
the  proportion  to  the  number  to  whom  suffrage  is  denied.1 
In  order  to  be  a  Representative  a  person  is  required  :  (i) 
to  be  twenty-five  years  old,  (2)  to  have  been  seven  years 
a  citizen  of  the  United  States,  and  (3)  to  be,  Qualifications 
when  elected,  an  inhabitant  of  that  State  in  of  Repre- 
which  he  shall  be  chosen.  It  does  not  follow 
that  any  one  who  can  be  elected  possessing  these  three 
qualifications  must  be  seated  by  the  House.  A  criminal 
anarchist,  a  leper,  an  insane  person,  would,  obviously,  be 
ineligible  to  take  the  oath  of  membership.  The  House 
has  repeatedly  asserted  its  right  to  exclude  members- 
elect  for  treason  or  other  infamous  crime.  In  1862,  Con- 
gress imposed  a  test  oath  which  disqualified  thousands 
of  American  citizens,  and  this  law  remained  in  force  for 
twenty  years.  Congress  may  impose  disqualifications  for 
reasons  that  appeal  to  the  common  judgment  of  mankind. 
It  was  on  this  principle  of  construction  that  Congress  ex- 
cluded Brigham  H.  Roberts,  of  Utah,  as  "a  notorious, 
defiant,  demoralizing,  and  audacious  violator  of  State  and 
Federal  law  relating  to  polygamy  and  its  attendant 
crimes."  ' 

'See  p. 351. 

5  See  Report  of  House  Committee,  January  20,  1900,  in  the  Roberts 
case,  56th  Congress,  1st  Session,  Report  85,  Part  I.  When  the  clerk  is 
proceeding  to  organize  a  House  by  administering  the  oath  of  office  to  the 
members-elect,  if  the  first  person  offering  himself  should  be  objected  to  as 
a  person  unfit  to  take  the  oath,  the  House  will  consider  itself  as  already 
organized  for  the  purpose  of  determining  whether  such  person  shall  be 
allowed  to  be  sworn  in,  and  all  who  hold  certificates  of  election  may  vote 
on  the  question. 


248  The  American  Republic 

Representatives  and  direct  taxes  are  apportioned 
among  the  various  States  according  to  their  respective 
Apportion-  numbers.1  This  was  in  keeping  with  the  idea 
ment  of  Re-  that  taxation  and  representation  should  go  to- 
sLToTthT8  gether.  Therefore,  after  every  decennial  cen- 
House.  sus>    Congress  allots  to  each    State   so  many 

members  of  the  House.  The  State  determines  the  dis- 
tricts within  its  own  area  for  which  the  members  shall  be 
chosen.  Formerly  the  States  provided  for  popular  elec- 
tions in  their  own  way.  Some  elected  their  members  of 
Congress  on  a  common  ticket  by  the  State  at  large,  as  we 
now  elect  the  Presidential  electors.  On  this  plan,  usu- 
ally, the  party  that  carried  the  State  got  all  the  Congress- 
men from  that  State,  while  the  other  party  got  none, 
though  the  State  may  have  been  very  close  politically. 
But,  in  1842,  a  national  law  required  that  the  Represen- 
tatives should  be  elected  by  districts  composed  of  con- 
tiguous territory.  This  law  was  the  outcome  of  a  notable 
TheOrganiza-  contest  in  the  House  in  1839,  which  came  up 

tionofthe       from    the    State  of   New  Jersey,  whose  Con- 
House.    The  .  11       1  1 
New  jersey      gressmen  were  then  all  elected  on  a  common 

case,  1839.  ticket.  The  question  that  arose  was  whether 
the  Speaker  should  be  elected  before  the  settlement  of 
the  contested  election  cases  from  New  Jersey;  and,  if  so, 
whether  the  members  whose  seats  were  contested  should 
have  a  right  to  participate  in  the  election  of  the  Speaker 
and  the  organization  of  the  House.  Every  person  hold- 
ing a  certificate,  whose  name  is  on  the  Clerk's  roll  (where 
it  belongs  by  operation  of  law),  is  entitled  to  participate 
in  the  organization  of  the  House,  whether  sworn  in  or 
not.  The  five  Whig  members  from  New  Jersey  who  held 
certificates  of  election  had  their  seats  contested  by 
their  five  Democratic  opponents,  and  the  Clerk  of  the 
preceding   House,   a  Democrat,   whose  place   it  was   to 

1  Note  the  exception  just  cited  by  the  provision  of  the  Fourteenth 
Amendment,  p.  247. 


The  House  of  Representatives        249 

make  up  the  roll  of  the  new  House,  refused  to  place  the 
names  of  the  five  Whigs  on  the  list  of  those  entitled  to 
vote  for  Speaker.  Without  the  New  Jersey  members 
there  were  in  the  House  119  Democrats  and  118  Whigs. 
The  Clerk  did  not  presume  to  put  the  names  of  the  con- 
testing Democrats  on  the  roll ;  but  the  omission  of  the 
Whig  names  would  enable  the  Democrats  to  elect  their 
Speaker,  organize  the  House,  secure  a  majority  of  the 
Committee  on  Credentials  (the  Judiciary  Committee),  and 
decide  the  contested  seats  in  their  own  favor.  When,  in 
calling  the  roll  of  those  entitled  to  vote  in  the  organiza- 
tion of  the  House,  the  Clerk  came  to  the  State  of  New 
Jersey,  he  stated  that  on  account  of  the  contest  from  that 
State  it  would  be  passed  until  the  House  could  properly 
decide  who  were  entitled  to  sit  from  that  State.  This 
created  tumult  and  disorder.  The  Clerk  refused  to  put 
motions  to  the  House.  After  four  days  of  wrangling, 
John  Quincy  Adams,  addressing  the  members  as  "fellow- 
citizens,"  appealed  to  them  to  discharge  their  solemn 
duty  of  organizing  by  proceeding  with  the  roll,  and  in  so 
doing  they  should  call  the  members  from  New  Jersey 
who  held  the  certificates  of  election.  "But  who  will  put 
the  question?  "  some  one  asked.  "I  will  put  the  question 
myself,"  replied  the  "Old  Man  Eloquent."  The  Clerk 
was  cried  down;  Adams  was  elected  to  the  chair,  and, 
under  his  control,  the  House  proceeded  with  debate.  On 
December  14,  1839,  tne  House  consented  to  vote  for 
Speaker,  refusing  both  delegations  from  New  Jersey  the 
right  to  participate  in  its  organization.  This  was  what 
the  Democrats  had  contended  for,  but  a  group  of  Inde- 
pendent Democrats  separated  from  the  body  of  the  party 
and  joined  the  Whigs  in  electing  Robert  M.  T.  Hunter, 
an  Independent,  to  the  Speakership.  The  re-  District  Plan 
suit  of  this  contest  was  the  provision  of  the  ^fj"^- 
district  plan  for  electing  the  Representatives.   It  tatives. 

was  seen  that  the  district  plan  of  election  would  generally 


250  The  American  Republic 

prevent  a  State  from  sending  a  solid  delegation  to  Con- 
gress, and  that  it  would  be  a  more  popular  form  of  election. 
In  the  beginning,  the  Constitution  provided  that  the 
Representatives  should  not  exceed  one  for  every  thirty 
_  ,.     ,  „       thousand  of  the  population.     It  was  thought 

Ratio  of  Rep-  r    r  b 

resentatives  unwise  to  have  a  large  membership.  The  first 
to  Population.  auotment.  0f  Representatives  (made  by  agree- 
ment in  the  Constitutional  Convention  before  the  census 
of  1790  was  taken)  provided  for  65  members,  one  for 
about  every  61,000  of  the  population.  One  member  for 
every  30,000  of  the  population  would  have  given  a  House 
of  130  members.  With  the  growth  of  population  it  has 
been  found  necessary  to  increase  the  membership  of  the 
House,  though  it  is  still  small  in  comparison  with  the 
lower  houses  of  European  legislatures.  The  present 
House  of  Representatives  consists  of  386  members,  and 
this  gives  one  for  every  181,000  of  the  population.  The 
English  House  of  Commons  consists  of  670  members,1 
the  French  'Chamber  of  Deputies  of  584,  the  German 
Reichstag  of  397. a 

Each  State  has,  of  course,  at  least  one  Representative, 
though  its  population  may  not  be  as  much  as  the  appor- 
tionment would  require  for  the  average  congressional 
district.  Nevada,  with  a  population  of  42,000  has  one 
Congressman,  while  the  average  district  should  have 
181,000..  Though  each  State  is  allotted  its  share  of  Rep- 
resentatives, the  districts  within  the  States  may  vary 
greatly  in  population,  owing  to  "gerrymandering"  acts 
of  the  State  legislatures. 

If  after  a  new  Apportionment  Act  following  a  census  a 
congressmen-  State  has  received  an  increase  in  the  number 
at-Large.  Qf  jts  Representatives  and  the  State  legisla- 
ture fails  to  redistrict  the  State  before  the  next  congres- 

1  By  the  Act  for  the  Redistribution  of  Seats,  1885. 

2  This  is  one  for  every  131,000  of  the  population.  The  members  of  the 
Reichstag  are  elected  by  a  wide  suffrage  for  a  term  of  five  years. 


The  House  of  Representatives        251 

sional  election,  the  new  members  (or  member)  for  that 
State  are  elected  by  the  voters  of  the  whole  State  on  a 
general  ticket  and  are  called  "Congressmen-at-Large. " 

When  a  seat  in  the  House  becomes  vacant  by  the 
death,  resignation,  or  expulsion  of  a  member,  vacancies  in 
the  Governor  of  the  State  issues  a  writ  for  a  the  House- 
new  election.  A  member  resigns  by  letter  to  the  Gover- 
nor of  his  State. 

Each  of  the  Territories  has  a  delegate  in  Congress. 
These  may  sit  and  speak  in  the  House  and  introduce  bills 
and  make  motions,  but  they  have  no  right  to  Territorial 
vote.  They  are  not  recognized  by  the  Consti-  Delegates, 
tution  and  are  merely  persons  admitted  to  the  privileges 
of  the  House,  with  the  right  of  explaining  and  urging 
matters  touching  the  interests  of  their  Territories. 

Congress  meets  regularly  the  first  Monday  in  every 
December.  Although  a  Congressman's  term  and  salary 
begin  on  the  4th  of  March  next  after  his  elec-  Regular 

tion,  the  first  regular  session  of  the  Congress  Sessions. 
does  not  begin  until  the  following  December, — more 
than  a  year  after  the  election  of  the  Congress.  This  first, 
or  long,  session  may  last  until  July  or  August,  or  even 
until  September.  The  second,  or  short,  session  begins 
in  December  and  must,  by  the  limitation  of  the  Con- 
stitution, expire  on  the  following  4th  of  March.  The 
Congress  elected  in  November,  1902,  will  not  meet  until 
December,  1903,  unless  the  President  calls  it  into  "ex- 
traordinary session."  "Extra  sessions"  are  Extra 
avoided  as  much  as  possible;  they  are  ex-  sessions, 
pensive  and  are  politically  hazardous,  and  the  President 
is  usually  reluctant  to  subject  his  party  to  the  risks  which 
such  a  session  may  bring.  It  might  be  better  to  have  the 
new  Congress  convene  immediately  after  the  Christmas 
holidays  following  its  election.  It  would  then  come  fresh 
from  the  people,  prepared  to  carry  out  the  policies  on 
which  it  was  chosen.     Opposed  to  this,  it  has  been  urged 


252  The  American  Republic 

that  the  members  will  not  have  had  time  to  consider  suf- 
ficiently the  public  measures  on  which  they  will  be  called 
to  vote  and  act.  It  many  be  answered  that  the  people 
ought  not  to  elect  to  Congress  men  who  have  not  given 
worthy  consideration  to  the  issues  and  questions  of  the 

day. 

The  House  is  organized  by  the  election  of  its  officers, 
after  the  Clerk  of  the  preceding  House  has  administered 
officers  of  the  the  oath  of  office  to  the  members-elect.  The 
House.  officers  of  the  House  are  a  Sergeant-at-Arms,  a 

Doorkeeper,  a  Postmaster,  and  a  Chaplain.  The  func- 
tions of  these  officers  are  generally  indicated  by  their 
respective  names. 

The  Clerk  becomes  politically  important  and  interesting 
in  the  organization  of  a  new  House.  It  is  his  place  to 
The  cierk  of  preside  while  the  new  Speaker  is  being  elected, 
the  House.  ]-[e  must  act  as  a  fair  moderator  and  give  no  ad- 
vantage to  either  side.  In  the  celebrated  contest  over  the 
Speakership  in  1855-56,  when  the  House  was  occupied  for 
two  months  in  the  attempt  to  elect  a  Speaker,  the  Hon. 
John  W.  Forney,  Clerk  of  the  preceding  House,  performed 
a  distinguished  public  service  by  the  fair  and  judicial  man- 
ner in  which  he  presided.  His  position  was  a  very  im- 
portant and  responsible  one.  The  Clerk  also  makes  up 
the  roll  of  the  new  House,  from  the  certified  returns  of 
the  States.  He  must  make  up  the  roll  according  to  the 
returns.  In  case  of  a  contest  he  is  not  to  decide  the  con- 
test, nor  is  he  free  to  leave  off  from  the  preliminary  roll 
the  names  of  those  whose  certificates  of  election  are  con- 
tested. It  is  the  function  of  the  House  to  settle  these 
contests,  and  all  those  who  hold  the  regular  certificates 
of  election,  whether  rightfully  or  not,  are  allowed  to  par- 
ticipate in  the  organization  of  the  House. 

The  election  of  its  officers  is  a  mere  form  in  the  House. 
This  election  is  prearranged  and  predetermined  by  a 
caucus  of  the  majority  of  the  House.     In  this  party  meet- 


The  House  of  Representatives        253 

ing,  held  a  few  days  before  the  time  appointed  for  the 
organization  of  the  House,   and   to  which  only   House 
members  of  the  majority  party  are  admitted,  a 
list  of  officers  is  agreed  upon.     After  a  majority  caucus 

of  the  party  caucus  have  agreed  upon  a  list  of  Chooses  the 
officers  for  the  House,  it  is  known  that  these  will 
be  elected ;  for  the  rule  of  the  caucus  is,  that  those  who 
participate  in  its  proceedings  must  support  its  decisions 
in  the  open  House.  It  is  very  seldom  that  party  mem- 
bers refuse  to  go  into  a  party  caucus,  and  still  more  sel- 
dom that,  having  gone  in,  they  refuse  to  support  the 
ticket,  or  policy,  agreed  upon  by  the  party  majority. 
Thus  the  Speaker  of  the  House  is  chosen,  in  the  first  in- 
stance, not  by  the  House,  but  by  the  caucus  of  the 
dominant  party  in  the  House,  and  the  choice  is  only 
formally  ratified  by  the  House  as  a  means  of  getting  the 
verdict  of  the  caucus  incorporated  in  the  official  record. 
Of  course,  if  the  majority  of  the  House  chose  to  do  so, 
they  could  upset  the  decision  of  the  caucus. 

The  minority  leader  in  the  House  is  chosen  in  the  same 
way.  The  minority  party  determines  by  a  caucus  on  a 
choice  for  the  party's  complimentary  vote  for  The  Minority 
the  Speakership.     Whoever  receives  this  vote  Leader, 

is,  by  the  usage  and  the  traditions  of  the  parties,  the 
acknowledged  minority  leader.  In  a  session  of  Congress 
next  preceding  a  national  campaign  the  minority  leader 
utilizes  the  energy  of  his  party  in  the  House  to  "make 
politics," — that  is,  to  endeavor,  with  all  the  skill  and  tact 
he  possesses,  to  put  the  majority  in  as  unfavorable  a  light 
as  possible  before  the  country,  and  the  minority  in  as 
favorable  a  light  as  possible.  It  is  important  for  the  party 
that  this  leader  be  an  experienced  Congressman  and  a 
well-trained  parliamentarian. 

The  members  are  seated,  the  Democrats  upon  the  right 
of  the  Speaker,  the  Republicans  upon  his  left.  Individ- 
ual   members   are    seated    by   lot.      The    names   of   the 


254  The  American  Republic 

members  are  placed  in  a  box,  and  there  follows  a  lottery 

for  the  choice  of  scats.     A  blindfolded  page  draws,  and  as 

each  member's  name  comes  out  he  chooses  a 

Seat  Drawing. 

seat  not  already  taken.  By  courtesy,  a  few 
members  of  very  long  service  in  the  House  are  allowed  to 
choose  their  seats  without  drawing;  or  a  young  member 
whose  name  may  be  drawn  among  the  first  may  give  his 
chance  to  choose  to  an  older  leader  in  the  House.  It  is 
an  advantage  to  have  a  seat  centrally  located  if  one  wishes 
to  hear  or  take  part  in  the  proceedings. 

The  salary  of  the  Congressman,  as  of  the  Senator,  is 
$5000  a  year,  in  addition  to  mileage, — twenty  cents  a 
The  Salary  of  mile  for  travelling  to  and  from  Washington, — 
congressmen.  ancj  |I2^  for  stationery.  The  English  Member 
of  Parliament  serves  without  salary,  and  if  a  member  of 
the  working  classes,  or  a  poor  man  who  cannot  afford  to 
serve  without  pay,  should  be  elected  to  Parliament  he  is 
paid  by  the  collections  and  the  contributions  of  those 
who  are  interested  in  keeping  him  in  Parliament.  In 
America  it  is  believed  that  public  work  should  be  paid 
for,  and  that  all  classes,  rich  and  poor  alike,  should  be 
given  an  equal  chance  to  sit  in  Congress.  America  can- 
not depend  upon  a  wealthy  and  leisured  class  to  govern.1 

A  Congressman  is  elected  for  two  years.  Occasionally 
a  man  of  distinction  is  continued  in  service  for  several 
_,,    „  ,  consecutive  terms,  and  the  most  distinguished 

The  Tenure  of  '  ° 

the  Congress-  congressional  leaders  are  those  who  have  sat  for 
long  terms  by  successive  re-elections.  But  the 
local  influences  in  the  States,  the  ambitions  and  schemes 
of  the  political  wire-pullers  and  workers,  and  the  prac- 
tice of  rotation  in  office  that  has  been  considerably  culti- 
vated have  tended  to  limit  the  average  length  of  service 
to  four  or  six  years. 

"  No  habit,"  says  Mr.  Bryce,  "  could  more  effectually  dis- 
1  Bryce,  vol.  xi.,  p.  194. 


The  House  of  Representatives        255 

courage  noble  ambition  or  check  the  growth  of  a  class  of  ac- 
complished statesmen.  There  are  few  walks  of  life  in  which 
experience  counts  for  more  than  it  does  in  par-  Rotation  in 
liamentary  politics.  It  is  an  education  in  itself,  an  congressional 
education  in  which  the  quick-witted  western  Ameri-      Terms,  and 

_  rr  j  **S  K.eSUlt. 

can  would  make  rapid  progress  were  he  suffered 
to  remain  long  enough  at  Washington.  At  present  he  is  not 
suffered,  for  nearly  one  half  of  each  successive  House  con- 
sists of  new  men,  while  the  old  members  are' too  much  harassed 
by  the  trouble  of  procuring  their  re-election  to  have  time  or 
motive  for  the  serious  study  of  political  problems." 

The  State  of  Maine  has  lately  presented  a  good  example 
of  pre-eminence  in  congressional  influence  on  account  of 
the  practice  of  her  people  in  retaining  for  many  consecu- 
tive terms  her  able  Representatives.  Mr.  Reed,  the 
Speaker,  Mr.  Dingley,  Chairman  of  the  Committee  on 
Ways  and  Means,  Mr.  Boutelle,  Chairman  of  the  Com- 
mittee on  Appropriations,  and  other  Representatives  from 
Maine  have  held  places  of  commanding  influence. 

By  the  provisions  of  the  Constitution,  Con-  Powers  of 
gress  shall  have  power  ongress. 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States. 

2.  To  borrow  money. 

3.  To  regulate  commerce  with  foreign  nations  and  among 
the  several  States  and  with  the  Indian  tribes. 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uni- 
form laws  on  the  subject  of  bankruptcy  throughout  the  United 
States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coins,  and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting. 

7.  To  establish  post-offices  and  post  roads. 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
laws  of  copyright  and  patents. 


256  The  American  Republic 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court. 

10.  To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations. 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  sea. 

12.  To  raise  and  support  armies.  But  no  appropriation  of 
money  for  that  use  shall  be  for  a  longer  term  than  two  years. 

13.  To  provide  and  maintain  a  navy. 

14.  To  make  rules  for  the  regulation  of  the  land  and  naval 
forces. 

15.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws,  suppress  insurrections,  and  repel  invasions. 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  as  may  be  employed  in  the 
service  of  the  United  States. 

17.  To  govern  the  District  of  Columbia, — the  seat  of  gov- 
ernment of  the  United  States. 

Powers  Denied     There    are    certain    powers    of    government 
to  congress,     specifically  withheld  from  Congress : 

1.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

2.  No  capitation  or  other  direct  tax  shall  be  laid,  except  in 
proportion  to  population. 

3.  No  tax,  or  duty,  shall  be  laid  on  articles  exported  from 
any  State. 

4.  No  preference  shall  be  given  by  commercial  regulations 
to  the  ports  of  one  State  over  those  of  another;  nor  shall  any 
inter-State  duties  be  levied.1 

While  the  Senate  and  the  House  are  to  be  considered 
as  co-ordinate  branches  of  the  National  Legis- 

Exclusive  ,  ,       ,  ,     .  ,       .  •    •, 

Rights  and  lature,  each  has  certain  exclusive  privileges 
Powers  of  the  from  which  the  other  is  barred.  The  House 
may  not  participate  with  the  Senate  in  confirm- 
ing appointments  or  approving  treaties.  On  the  other 
hand,  the  House  has  the  exclusive  right : 

•Art.  I.,  Sec.  9. 


The  House  of  Representatives        257 

1.  To  initiate  revenue  bills. 

2.  To  prefer  articles  of  impeachment. 

3.  To  elect  the  President  in  case  the  Electoral  College  fails 
to  elect. 

These  exclusive  powers  are  not  very  important  and  they 
do  not  add  much  to  the  prestige  and  power  of  the  House. 
Since  the  Senate  can  amend  revenue  bills,  it  can  as  effec- 
tually determine  the  course  of  revenue  legislation  as  if  it 
could  originate  such  bills.1 

Impeachment  is  but  a  dormant  power  in  the  House. 
Conviction  is  so  rare  and  difficult  that  this  weapon  of 
power  will  never  be  readily  resorted  to  on  the  part  of  the 
House. 

In  the  eventual  election  of  a  President  the  House  be- 
comes of  special  importance;  but  in  that  case  the  House 
votes,  not  as  single  body,  but  as  a  collection  of  equal  and 
co-ordinate  delegations.8 

There  are  four  methods  of  division   in   the       Method  of 

House:  Division. 

1.  By  viva  voce  vote,  in  which  the  Speaker  determines 
which  side  has  carried.  "It  appears  that  the  ayes  have 
it,"  he  says. 

2.  By  a  standing  vote,  the  members  being  counted  by 
tellers. 

3.  By  passing  between  tellers  in  front  of  the  Speaker's 
desk. 

4.  By  the  yea  and  nay  vote,  by  which  the  votes  of  the 
members  are  put  upon  record.  One  fifth  of  the  members 
may  call  for  the  yeas  and  nays,  by  express  provision  of 
the  Constitution.3 

The  rules  and  procedure  of  the  House  are  too  com- 
plicated to  permit  of  full  explanation  here.  In-  RuieS  and 
deed,  only  experienced  members  of  the  House  Procedure, 
ever  come  thoroughly  to  understand  the  application  of 

1  See  p.  211,  chapter  on  the  Senate.     2Seep.  118.     3  Art.  I.,  Sec.  4,  CI.  3. 

'7 


258  The  American  Republic 

the  rules.  The  parliamentary  manoeuvres  and  processes 
are  confusing  and  are  to  be  learned  only  by  attendance 
or  from  a  study  of  the  record.  Some  of  the  more  im- 
portant phases  of  the  House  rules  and  procedure  and 
the  methods  of  filibustering  may  be  best  explained  in  con- 
nection with  an  historic  illustration. 

On  March  25,  1892,  the  friends  of  the  Bland  Free  Silver 
Bill,  after  three  days'  consideration  of  that  measure  be- 
T11    ,  .  fore  the  House,  wished  to  bring  the  measure 

Illustration  of  '  ° 

the  House  to  a  vote.  The  Committee  on  Rules  had  re- 
rocee  mgs.  p0rted  in  favor  of  a  special  order  for  its  consid- 
eration. A  special  order  is  an  order  of  the  House  naming 
The  Special  a  special  time  for  the  consideration  of  a  meas- 
Order.  ure>     This  is  the  way  an  important  measure  is 

reached  when  there  are  a  thousand  insignificant  ones 
ahead  of  it  on  the  calendar.  Any  piece  of  business  is  ad- 
vanced in  the  House  in  two  ways:  It  is  made  privileged 
business  by  giving  its  committee  the  right  to  report  at 
any  time  l ;  or  a  special  order  is  passed  in  its  favor  set- 
ting a  time  for  its  consideration.  The  special  order  is 
used  as  a  means  of  satisfying  the  political  demand  or 
party  policy  of  the  hour.  Formerly  it  might  be  moved, 
at  certain  times,  by  any  member  of  the  House,  or  on  a 
report  of  any  committee.  But  recently  the  tendency  has 
been  to  concentrate  the  power  of  the  House  in  a  few 
hands,  in  order  to  restrain  the  power  of  the  minority  and  to 
committee  expedite  or  control  the  business  of  the  House, 
on  Rules.  This  has  resulted  in  increasing  the  power  of  the 
Committee  on  Rules  until  this  committee,  so  far  as  direct- 
ing and  controlling  the  business  of  the  House  is  con- 
cerned, is  now  easily  the  primate  among  the  committees. 
This  committee  consists  of  five  members  of  the  House, 
three  from  the  majority  and  two  from  the  minority,  and 
the  Speaker  is  chairman  of  the  committee.  It  became  a 
select  committee  in   1858  and  a  standing  committee  in 

1  See  p.  287  et  scq. 


The  House  of  Representatives        259 

1880.  Its  three  majority  members  are  old  and  experi- 
enced members  of  Congress  and  the  responsible  leaders  of 
their  party.  The  powers  the  committee  now  possesses 
enable  it  to  select  the  business  for  the  House  to  attend 
to ;  all  special  orders  must  go  to  and  come  back  from  this 
committee ;  it  has  the  right  to  sit  at  any  time  during  the 
sessions  of  the  House;  it  can  report  a  special  order  on  its 
own  account  which  has  not  been  previously  committed  to 
it,  as  a  resolution  from  an  individual  or  another  commit- 
tee might  be ;  it  is  a  privileged  or  licensed  committee, — 
that  is,  its  reports  of  new  and  special  rules  are  in  order  at 
any  time  the  committee  may  wish  to  bring  one  in ;  while 
the  Speaker,  as  a  member  of  this  committee,  may  decide 
that  any  filibustering  against  a  proposed  rule  is  out  of 
order  as  interfering  with  the  constitutional  right  of  the 
House  to  adopt  rules  for  its  proceedings.  While  the 
special  order  is  made  by  the  vote  of  the  House,  it  can 
now  occur  only  on  the  initiative  of  the  Committee  on 
Rules, — a  rule  which  practically  makes  this  committee 
the  arbiter  of  the  business  of  the  House,  as  in  this  way  it 
may  "steer,"  or  manage,  the  House  proceedings.  If  it 
sees  a  measure  about  to  pass  which  it  opposes  it  may 
block  proceedings  by  a  special  order  in  favor  of  other 
business ;  or,  if  in  sympathy  with  filibustering,  it  may  re- 
fuse to  report  a  rule  to  prevent.  Thus  the  Committee 
on  Rules  decides  what  the  House  shall  do. 

The  Speaker  and  the  two  majority  members  of  this 
committee  may  accept  or  reject  a  bill,  may  permit  or  limit 
or  refuse  debate,  may  admit  or  refuse  to  admit  an  amend- 
ment. A  member,  having  introduced  a  bill,  having 
secured  consideration  of  it  and  a  favorable  report  by  a 
committee,  must  get  his  bill  from  the  calendar,  where  it  is 
consigned  when  reported  by  the  committee.  To  do  this 
he  must  get  the  Speaker's  consent,  or  that  of  the  Com- 
mittee on  Rules.  This  committee  decides  what  the  House 
shall    consider.      This   practice   under   the    rules    of   the 


260  The  American  Republic 

House  practically  bars  the  great  body  of  the  majority 
from  any  active  participation  in  legislation.  They  are 
converted  into  "brute  votes,"  to  ratify  what  the  few 
leaders  determine  upon. 

"Absolute  power  over  the  presentation,  discussion,  and 
amendment  of  measures  has  been  given  to  the  Speaker  and 
the  Committee  on  Rules;  and  this  coterie  of  less  than  a  half  a 
dozen  men  entirely  dominates  all  proceedings  in  the  House  of 
Representatives.  It  decides  what  shall  be  considered,  for 
how  long,  and  by  whom,  and  the  precise  force  of  any  measure 
is  determined  in  advance."  * 

It  is  because  of  the  excessive  power  of  the  Committee 
on  Rules  and  of  its  chairman,  the  Speaker,  that  the 
House  has  "ceased  to  be  a  deliberative  body."  At 
times  party  members  have  become  "insurgents,"  and 
have  broken  away  from  the  control  of  these  leaders  who 
direct  the  business  of  the  House.  This  power  has  been 
given  to  the  leaders  by  the  vote  of  the  majority  and  they 
can  undo  it  by  changing  their  rules.  The  defence  for  thus 
destroying  their  own  importance  is  that,  without  rules 
that  vest  power  with  some  directing  committee,  so  large 
a  body  as  the  House  would  be  unable  to  do  business. 
With  the  open  rules  of  the  Senate  the  minority  could 
prevent  any  proposal  of  the  majority.  A  reform  lately 
proposed  is  that  the  Committee  on  Rules  should  be  en- 
larged and  that  it  should  be  selected,  not  by  the  Speaker, 
but  by  the  party  caucus.  It  would  then  be  more  of  a 
representative  committee,  and  would  respond  to  the  judg- 
ment of  the  majority  of  the  House,  and  "if  the  majority 
is  not  fit  to  determine  its  own  policies,  popular  govern- 
ment is  a  failure."  2 

1  Quoted  from  a  San  Francisco  paper  by  Bell  of  Colorado,  House, 
March  31,  1902. 

1  Representative  Crumpacker  of  Indiana,  Indianapolis  News  interview 
April  zi,    1902.     See   "The   Rules   of   the  House,"    by   Hon.    John    M. 


The  House  of  Representatives        261 

To  resume  our  illustration :  the  Committee  on  Rules 
had  set  aside  three  days  for  the  consideration  of  the  Silver 
Bill,  and  the  bill  was  debated  until  five  o'clock  of  the  last 
day.  Among  the  hostile  efforts  designed  to  defeat  the 
bill,  Mr.  Burrows  of  Michigan  moved  to  lay  the  bill  on 
the  table,  a  motion  which,  if  carried,  would  have  disposed 
of  the  bill  finally.  To  lay  upon  the  table  without  nam- 
ing a  day  for  further  consideration  is  to  postpone  indefi- 
nitely,— that  is,  to  kill.  The  vote  upon  Mr.  Burrows's 
motion  stood  148  to  147.  Thereupon,  Speaker  Crisp 
voted  as  a  Representative  from  the  State  of  Georgia,  and 
the  vote  became  a  tie,  148  to  148.  The  The  speaker's 
Speaker  has  the  right  of  a  Representative  and  Vote- 

may  vote  at  any  time,  but,  having  voted  once,  he  may 
not,  of  course,  vote  again.  He  may  break  a  tie  and  carry 
a  motion,  or  make  a  tie  and  defeat  a  motion.  Conse- 
quently, the  Silver  Bill  was  not  laid  on  the  table,  since  it 
requires  a  majority  to  carry  a  motion.  The  friends  of  the 
bill  were  striving  to  keep  it  in  its  place  as  the  first  matter 
of  business  before  the  House,  and  they  now  wished  to 
push  it  to  a  vote.  To  prevent  a  vote  the  opponents  of 
the  bill  began  to  filibuster.     Filibustering  is  the 

fa  °  Filibustering. 

process  of  resorting  to  parliamentary  tactics 
for  the  purpose  of  delaying,  or  obstructing,  or  prevent- 
ing, the  business  before  the  House.  The  process  consists 
in  moving  to  adjourn,  moving  to  "adjourn  till  eight 
o'clock,"  moving  to  "take  a  recess,"  or  that  "when  the 
House  adjourns  it  adjourn"  to  a  certain  hour,  calling  for 
the  yeas  and  nays,  and  making  other  dilatory  motions 
which  are  in  order  by  the  rules  of  the  House.  A  dilatory 
motion  identical  with  one  just  disposed  of  may  not  be 

Thurston,  in  New  York  Independent,  April  24,  1902  ;  speech  of  Hon.  F. 
W.  Cushman  of  Washington,  in  the  House,  April  17,  1902  ;  remarks  of 
Hon.  J.  C.  Bell  of  Colorado,  in  the  House,  March  31,  1902  ;  speech  of 
Hon.  J.  M.  Robinson  of  Indiana,  in  the  House,  Dec.  13,  1899,  and 
March  3,  1898,  and  in  the  Washington  Post,  May  5,  1902. 


262  The  American  Republic 

made  until  some  business  has  intervened ;  but  it  will  be 
seen  that  the  motions  need  be  only  slightly  varied,  while 
a  speech  (and  windy  obstructionists  are  fertile  in  speeches) 
has  been  interpreted  as  intervening  business.  It  is  well 
understood  that  motions  of  this  kind  can  be  made  with- 
out limit,  and  no  bill  can  possibly  pass  as  long  as  these 
motions  are  kept  up.  If  the  minority  be  large  enough 
these  filibustering  tactics  will  always  succeed  in  forcing 
adjournment  or  a  compromise. 

Filibustering  tactics  against  the  Bland  Bill  were  kept 
up  until  a  late  hour  on  the  last  day  for  the  consideration 
of  the  bill,  with  the  purpose  of  wearying  the  friends  of 
the  measure  into  a  willingness  to  adjourn.  The  friends 
of  the  bill  were  determined  to  continue  in  session  in 
order  to  prevent  a  lapse  of  the  legislative  day.  A 
The  Legisia-  legislative  day  lasts  as  long  as  the  House  re- 
tive  Day.  mains  in  session,  though  it  may  be  a  week  by 
the  calendar;  and  thus  the  contest  becomes  one  of  physi- 
cal endurance.  To  adjourn  without  voting  on  the  bill 
would  have  been  disastrous  to  it ;  because,  in  that  case, 
since  only  three  days  had  been  assigned  for  its  considera- 
tion, it  would  have  fallen  back  to  its  place  on  the  calen- 
dar.    To  get  at  a  bill  which  is  on  the  calendar 

The  Calendar      ,        __  ,  .   ,  .    .  ,       ,  .,,,     , 

••the  ceme-  the  House  has  either  (i)  to  await  the  bill  s  turn 
tery  of  Legis-  m  jts  order,  or  (2)  to  advance  it  on  the  calendar 

lative  Hopes."  ...... 

by  a  special  order, — to  set  a  special  time  tor  its 
consideration.  There  was  no  hope  of  reaching  the  Silver 
Bill  during  that  Congress  by  awaiting  its  order  on  the  cal- 
endar. The  calendar  is  like  a  great  graveyard  of  ten 
thousand  buried  bills.  Generally,  only  the  favored  ones 
are  called  out  by  the  special  order.  To  advance  the 
Silver  Bill  again  by  special  order  would  require  its  friends 
(as  they  had  done  before)  to  secure  a  majority  of  the 
Democratic  members  of  the  House  to  a  petition  asking 
the  Committee  on  Rules  to  report  the  order  in  its  favor. 
Pressing  business  may  have  been  mapped  out  which  made 


The  House  of  Representatives        263 

this  impossible.  Or  hostile  members  who  wished  to  make 
a  record  of  favoring  the  bill,  but  who  were  really  opposing 
it,  would  have  refused  to  co-operate  in  this  private  party 
effort.  The  speech  and  vote  of  these  members  were  on 
record  in  favor  of  the  measure  and  these  could  be  shown 
to  their  constituents,  though  their  private  influence, 
secured  through  pressure,  patronage,  or  bribery,  was 
against  the  measure.  At  this  juncture  in  the  conflict 
over  the  Silver  Bill  the  Committee  on  Rules,  or  its  ma- 
jority, consisting  of  the  Speaker  and  his  two  party  col- 
leagues on  the  committee,  could  have  secured  the  passage 
of  the  bill  by  reporting  a  cloture  rule  to  prevent  cloture 

further  filibustering.  One  of  the  important 
powers  of  the  Committee  on  Rules  is  that  it  may,  when 
it  wishes,  shut  off  filibustering  by  reporting  a  new  rule 
designed  to  bring  the  House  to  a  vote.  In  1890,  a  rule 
empowered  the  Speaker  to  refuse  to  put  any  motion 
which  he  considered  dilatory.  This  promotes  "one-man 
power,"  and  the  Speaker  vested  with  such  power  might 
disregard  the  rights  of  the  minority.  While  this  rule  is 
not  a  standing  one  it  may  be  made  a  special  one  at  any 
time  and  is  apt  to  be  introduced  to  rebuke  and  defeat 
palpable  and  offensive  filibustering  tactics.  This  is  the 
process  of  cloture,  a  process  by  which  the  Speaker  may 
defeat  filibustering  and  suppress  the  minority.  It  is  the 
process  by  which  the  House,  setting  aside  parliamentary 
usage  and  delays,  concentrates  its  authority  in  its  presid- 
ing officer  and  instructs  him  to  bring  it  to  a  decision. 
However,  no  member  who  wishes  to  discuss  a  measure  in 
a  bona  fide  and  serious  way  is  ever  apt  to  be  estopped  by 
the  forced  application  of  the  previous  question  under  a 
special  rule  for  cloture.  A  cloture  rule  is  a  rule  or  resolu- 
tion which  provides  that  after  a  certain  limited  time  for 
debate  all  motions  and  business  are  out  of  order  except 
the  previous  question  and  the  vote  on  the  pending  bill, 
and  the  Speaker  is  instructed  to  recognize  no  member  for 


264  The  American  Republic 

the  purpose  of  making  a  dilatory  motion,  and  to  declare 
all  such  motions  out  of  order. 

The  previous  question  is  the  most  common  form  of 
cloture.  It  is  the  chief  parliamentary  remedy  against 
The  Previous  filibustering.  If  members  are  indulging  in  ob- 
Question.  structive  debate  merely  to  stave  off  or  prevent 
business  the  previous  question  may  be  moved,  and  if  this 
carries,  the  House  must  then  vote  upon  the  question 
before  it.  No  debate  is  allowed  on  the  motion  for  the 
previous  question.  The  motion  for  the  previous  ques- 
tion is  a  motion  for  the  closure  of  debate.  It  cannot 
be  applied  in  the  Committee  of  the  Whole,  but  it  may 
be  decided  there  to  adopt  it  as  a  rule  for  application 
in  the  House.  On  the  occasion  of  the  struggle  over  the 
Silver  Bill  to  which  we  have  referred  the  Committee  on 
Rules  refused  to  report  a  cloture  rule  and  the  Silver 
Bill  was  laid  on  the  shelf  by  the  filibustering  tactics  of  its 
opponents. 

When  a  bill  or  a  proposition  for  a  law  is  offered  for  en- 
actment it  is,  if  a  public  bill,  handed  to  the  Speaker,  and 
How  a  Bui  is  if  a  private  one,  to  the  Clerk,  and  by  him  it  is 
Passed.  sent   to   one  0f  ^e  fjfty  or  more  committees 

which  are  appointed  at  the  beginning  of  the  Congress. 
In  committee,  from  eleven  to  fifteen  men  examine  it, 
and,  if  necessary,  give  hearings  to  members  and  citizens 
who  wish  to  present  arguments  or  facts  to  guide  the  com- 
mittee to  its  conclusions.  The  committee  then  reports, 
and  if  the  bill  requires  money  from  the  Treasury,  or 
property  of  the  United  States,'  its  name  goes  on  a  list 
called  a  calendar  of  the  "Committee  of  the  Whole  House 
on  the  State  of  the  Union."  If  the  bill  does  not  carry 
money  its  name  goes  on  the  House  calendar. 

Every  morning,  when  the  House  does  not  otherwise 
The  Morning  order,  there  is  a  period  of  time  called  the  morn- 
Hour.  jng  /wur — which   may  be  an  hour  or  a  day — 

when  bills  which  do  not  carry  money  can  be  called  up 


The  House  of  Representatives        265 

and  passed.     It  is  harder  to  get  at  money  bills  and  harder 
to  pass  them,  especially  if  there  be  opposition. 

"  In  the  Committee  of  the  Whole  House  on  the  State  of  the 
Union,  there  is  general  debate,  so  hard  to  close,  and  five 
minutes'  debate,  so  provocative  of  other  five  minutes.  The 
Committee  of  the  Whole  is  a  very  asylum  of  oratory,  economy, 
and  patriotism.  There  the  workingman  gets  exuberant  justice 
done  him,  especially  during  election  year.  There  tyranny  re- 
ceives its  most  dreadful  buffetings,  and  trusts  and  monopolies 
are  properly  and  accurately  characterized."  l 

Long  sessions — continuous  night  sessions — are  often 
held  in  order  to  force  agreement  from  the  House. 

' '  What  men  will  not  yield  to  conviction  they  will  yield  to 
weariness.  After  sitting  up  all  night  principles  do  not  seem  so 
utterly  supreme.  Constitutional  views  of  the  patriot  will  give 
way  under  prolonged  weariness  of  the  flesh.  What  Congress 
would  not  vote  in  the  evening  it  may  be  ready  to  vote  by  five 
the  next  morning,  if  kept  in  session.  If  you  must  have  agree- 
ment it  is  just  as  necessary  to  lock  up  Congress  as  it  is  to  lock 
up  a  jury.  Men  are  such  queer  compounds  that  nothing  but 
physical  discomfort  will  reveal  to  set  obstinacy  that  half  the 
questions  of  principles  are  questions  of  temper  and  half  the 
other  half  mere  pride  of  opinion."  ' 

In  the  English  Commons,  bills  are  generally  carried 
through  by  the  Government,  and  the  party  majority 
are  brought  into  line  for  the  support  of  all  A..  Govern_ 
Government  bills.  A  Government  bill  in  Eng-  ment  Bin  »  in 
land  is  one  brought  in  by  the  responsible  Min- 
istry of  the  day ;  that  is,  a  bill  originated  and  supported 
by  the  Cabinet,  or  Government.  Having  behind  it 
the  responsibility  of  the  Ministry  it  will  have  the  support 

1  Hon.  Thomas  B.  Reed,  in  The  Youth's  Companion,  Dec.  4,  1890. 


266  The  American  Republic 

of  the  majority  which  keeps  the  Ministry  in  office.  All 
important  bills  involving  political  issues  are  Government 
bills,  and  as  the  Ministry  disposes  of  half  the  working 
time  of  the  House  it  has  facilities  for  pushing  its  bills. 
A  Government  bill  is  carefully  weighed  and  discussed  by 
the  Cabinet  before  it  is  introduced.  The  Government 
must  stand  or  fall  with  the  bill ;  if  it  is  rejected  they  re- 
sign. Such  a  bill  is  exposed  to  the  hostile  criticism  of 
the  opposition,  who  seek  to  discredit  and  defeat  it.  A 
private  member — that  is,  a  member  of  the  House  but  not 
a  member  of  the  Ministry — may  introduce  a  bill  on  his 
own  account  and  urge  its  passage.  But  the  Ministry  is 
held  responsible  for  what  the  House  does.  If  they  allow 
a  private  member  to  pass  a  bad  bill,  or  prevent  his  pass- 
ing a  good  one,  they  are  blamed.  Consequently  the 
Ministry  will  be  called  upon  to  state  through  one  of  its 
members  whether  the  Government  opposes  or  favors  the 
bill,  or  is  neutral.  The  attitude  of  the  Ministry  may  de- 
termine the  fate  of  the  bill. 

There  are  no  Government  bills  in  Congress.  All  mem- 
bers are  private  members.  The  nearest  approach  to  a 
a  "  caucus  Government  bill  is  one  presented  by  some 
Bin  ••  in  leader  of  the  majority  at  the  behest  of  his 
party  caucus,  or  as  the  spokesman  of  the  Ad- 
ministration. Sometimes  members  of  Congress,  by 
interviews  with  the  President  or  by  means  of  official  in- 
fluence, are  brought  around  to  favor  a  bill  that  they  have 
previously  opposed. 

Breaking  a  quorum  by  refusing  to  vote  was  formerly 
one  of  the  favorite  and  most  effective  means  of  filibustering 
The  stru  le  m  *^le  House.  ^n  order  to  prevent  this  Speaker 
over  the  Reed,    in   1890,  announced  a  notable  decision 

touching  the  quorum,  that  gave  rise  to  one  of 
the  most  heated  parliamentary  conflicts  in  the  history  of 
Congress. 

The  Constitution   says:  "A  majority  of   each  house 


The  House  of  Representatives        267 

shall  constitute  a  quorum  to  do  business;  but  a  smaller 
number  may  adjourn  from  day  to  day  and  may  be  author- 
ized to  compel  the  attendance  of  absent  mem-  a  Constitu- 
bers,  in  such  manner  and  under  such  penalties tionalQuorum- 
as  each  house  may  provide." 

For  one  hundred  years,  from  1789  to  1890,  it  was  the 
custom  and  rule  of  the  House  to  determine  a  quorum — 
that  is,  to  ascertain  whether  there  were  enough  „  Raisin  the 
members  present  to  do  business — by  roll-call.  Question  of  a 
Any  member,  after  the  House  had  voted  upon 
a  bill,  might  raise  the  question  of  a  quorum,  and  if  from 
the  Clerk's  record  it  should  appear  that  only  a  minority 
of  the  House  had  answered  to  the  call,  or  had  voted  on 
the  measure,  the  Speaker  was  bound  to  announce  that  no 
quorum  was  present  and  that  the  measure  had  failed  from 
lack  of  a  quorum.  It  is  true  that  many  times  the  House 
proceeds  in  the  transaction  of  business  without  a  quorum. 
Many  measures,  and  very  important  measures  too,  are 
often  passed  while  only  a  handful  of  members  are  present 
in  the  House.  But  this  is  because  no  one  objects  to  what 
is  being  done,  and,  according  to  a  legislative  fiction,  the 
House  is  supposed  not  to  know  that  there  is  no  quorum 
present.  No  one  has  called  the  attention  of  the  House 
to  that  fact.  But  any  member  may  do  so  at  any  time  by 
saying,  for  instance,  "Mr.  Speaker,  I  raise  the  question 
of  a  quorum."  He  may  do  this  for  the  purpose  of  calling 
the  attention  of  the  House  and  the  country  to  the  merits 
of  the  proposed  legislation ;  for  then,  if  the  member  per- 
sists in  his  objection  and  insists  upon  the  presence  of  the 
quorum,  a  majority  of  the  members  must  be  present,  and 
their  presence  is  determined,  not  by  their  being  seen, 
but  by  their  answering  to  a  roll-call.  Under  the  old  rule, 
if  a  quorum  is  demanded,  a  majority  of  the  whole  House 
must  vote  on  a  pending  measure  before  it  can  be  passed. 
In  this  way  a  conscientious  and  vigilant  member,  "awatch- 
dog  of  the  treasury,"  may  prevent  many  bad  jobs  from 


268  The  American  Republic 

going  through  while  a  great  majority  of  the  members  are 
absent  or  indifferent.  But  a  member  may  also  thus  ob- 
struct innocent  and  necessary  legislation  and  make  him- 
self merely  annoying  to  his  fellow  members.  And  it 
will  be  seen  that  by  this  rule  of  determining  the  quorum 
(not  by  the  actual  presence  of  members,  but  by  their 
voting)  a  minority  party,  by  persistently  refusing  to 
vote,  may  prevent  the  transaction  of  business  which  they 
do  not  like.  For  when  the  parties  are  closely  divided 
in  the  House  it  is  next  to  impossible  for  the  majority 
party  to  have  a  quorum  on  hands.  All  their  members 
cannot  be  there  at  once;  some  will  be  indif- 

Breaking  the     r  .  ...  .  .         . 

Quorum  a       ferent  to  the   public,   or   the  party,  business ; 
Means  of        some    may    be    at   home   attending   to   their 

Filibustering.    «,,...«,  ,.  .„      ,  .   . 

political  fences  ;  some  will  be  sick,  or 
by  a  sick-bed  at  home,  and  some  will  be  otherwise  un- 
avoidably detained.  The  old  rule  was  designed  to  enable 
the  minority  party  to  compel  the  majority  party  to  be  on 
hand  to  vote  measures  through.  If  the  party  majority  are 
to  constitute  the  House  to  do  business  a  large  minority 
party  may  at  any  time  "break  the  quorum  "  by  refusing 
to  vote,  and  thus  block  the  party  measures  of  the  ma- 
jority. Although  it  might  be  perfectly  clear  that  a 
quorum  was  present  the  House  could  take  notice  only  of 
those  voting,  and  nothing  could  be  done  but  to  proceed 
with  business  to  which  the  minority  party  will  give  their 
consent. 

Speaker  Reed's  decision  in  1890  consisted  in  directing 
the  Clerk  to  add  to  the  list  of  those  who  had  answered 
the  roll-call  the  names  of  members  as  "present  but  not 
voting  "  whom  he  saw  in  the  House.  Thus  the  Speaker 
made  a  quorum  by  adding  enough  of  those  whom  he  saw 
to  those  whom  the  Clerk  heard.  A  majority  present  doing 
business  by  voting  was  the  definition  of  a  quorum  by  the 
old  rule.  A  majority  present  shall  constitute  a  quorum 
to  do  business  was  the  new  interpretation,  and  the  pres- 


The  House  of  Representatives        269 

ence  of  the  majority  may  be  determined  by  the  counting 
of  the  Speaker. 

In  defence  of  the  old  rule  it  may  be  said  that  a  measure 
should  have  a  majority  of  the  House  in  its  favor;  if  the 
majority  wishes  to  pass  a  measure  they  should  Defenceof  the 
be  there  to  pass  it ;  that  it  is  the  right  and  duty     oid  Rule  of 

,     ,  .  .  -        r        j^i  r  the  Quorum. 

of  the  minority  to  require  for  the  passage  of  a 
law  to  which  they  are  opposed  that  a  clear  majority  of 
the  whole  House  should  be  registered  in  its  favor.  An 
unscrupulous  Speaker  may  see  only  one  side  and  may 
name  as  present  for  partisan  purposes  members  who  are 
not  present. 

But,  on  the  other  hand,  if  members  may  not  be  al- 
lowed to  break  the  quorum  by  their  absence  it  is  hardly 
reasonable  to  expect  that  they  should  be  allowed  to  do  so 
by  their  silence  after  they  have  been  compelled  to  come 
in.  The  House  is  perfectly  free  to  adopt  whatever 
constitutional  rule  it  pleases  for  the  determination  of  a 
quorum,  and  if  it  had  adopted  the  rule  of  1890  in  the  be- 
ginning, it  is  not  probable  that  any  objection  would  have 
been  made. 

The  Supreme  Court,  in  a  case  brought  to  test  the  con- 
stitutionality of  a  law  passed  under  this  ruling,  held  that 
it  is  within  the  competency  of  the  legislature  The  supreme 
to  enact  any  rule  not  forbidden  by  the  Consti-  CouTrt  sustains 

J  ....  Legislation 

tution,  or  that  is  not  against  natural  justice,  in  under  the 
order  to  secure  the  presence  of  a  quorum;  and  New  Rule- 
"when  the  quorum  is  present  it  is  there  for  the  purpose 
of  doing  business."  The  Court  held,  in  substance,  that 
a  man's  legal  presence  was  his  bodily  presence,  not  the 
presence  of  his  judgment  as  manifested  by  his  voice; 
and  that  if  a  man  is  present  in  the  body  he  is  properly 
supposed  to  have  his  voice  and  his  judgment  with  him. 

Speaker  Reed's  decision  was  made  before  the  Fifty-first 
Congress  had  adopted  its  rules,  and  it  was  said  in  criti- 
cism of  the  Speaker  that  while  the  House  had  a  right  to 


270  The  American  Republic 

adopt  such  a  rule,  the  Speaker  had  not.  But  Mr.  Reed 
was  acting  in  accordance  with  the  instruction  of  his  party 
majority  as  expressed  in  the  party  caucus,  and  the  House 
afterwards  adopted  the  rule  in  accordance  with  his  de- 
cision. The  minority  would  have  filibustered  against  the 
adoption  of  such  a  rule  and  the  quorum  decision  would 
have  been  necessary,  probably,  in  order  to  carry  the  rule 
itself,  though  it  is  true  that  the  regular  parliamentary 
order  would  have  been  to  adopt  the  rules  first  and  to 
come  to  the  decision  as  to  the  quorum  afterwards.  It 
may  fairly  be  concluded  that  this  notable  parliamentary 
decision,  while  not  violating  the  law  of  the  Constitution, 
and  while  giving  ample  rights  and  privileges  to  the  mi- 
nority, has  made  it  easier  for  the  majority  to  govern :  it 
will  tend  to  restrain  partisan  filibustering  and  bring  des- 
patch to  the  business  of  the  House. 

It  will  be  seen  from  what  has  been  said  that  the 
Speaker  is  the  most  important  officer  of  the  House.  In 
fact,  he  is  the  most  interesting  and  important 
legislative  officer  in  the  American  Common- 
wealth, if  not  in  the  world.  In  no  other  free  legislative 
body  in  the  world  is  there  an  officer  vested  with  such  vast 
legislative  power  as  has  the  American  Speaker.  Mr. 
Bryce  says  that  our  Speaker  holds  "a  power  which  in  the 
hands  of  a  capable  and  ambitious  man  becomes  so  far- 
reaching  that  it  is  no  exaggeration  to  call  him  the  second, 
if  not  the  first,  political  figure  in  the  United  States." 

The  Speakership  was  an  office  well  known  in  England 
when  our  Constitution  was  formed.  The  Speaker  of  the 
Commons  was  the  spokesman  of  the  House  when  the 
Commons  addressed  the  king.  Following  the  example  of 
the  English  title  the  presiding  officer  of  the  legislative 
assemblies  of  the  Colonies  was  called  Speaker. 

In  comparing  the  English  and  the  American  Speaker, 
we  see  the  difference  between  a  Speaker  as  a  mere  mod- 
erator, a  fair  and  judicial  presiding  officer  of  the  House, 


The  House  of  Representatives        271 

and  the  Speaker  as  a  political  and  party  leader,  the  repre- 
sentative head  of  his  party  and  the  director  of  his  party's 
policy.  In  England  the  Speaker  is  not  a  party  The  English 
leader  ;  he  is  a  mere  parliamentary  presiding  j^^ll! 
officer,  like  our  Vice-President  in  the  Senate.  speaker 

It  is  said  that  after  his  election,  after  he  passes  Compared, 
from  the  benches  to  the  Speaker's  chair,  he  forgets  to 
what  party  he  belongs ;  his  purpose  is  to  hold  even,  fair- 
handed  justice  between  the  two  sides  of  the  House. 
Generally  the  same  Speaker  continues  in  service,  no  mat- 
ter which  party  carries  the  House.  "In  1841,  when  there 
was  a  decided  Tory  majority  in  the  House,  the  Prime 
Minister,  Sir  Robert  Peel,  supported  'with  great  satisfac- 
tion '  the  former  Whig  Speaker."  Mr.  Bryce  tells  us 
that  Mr.  Brand,  although  he  had  once  been  Whip  of  the 
Liberal  party,  was  re-elected  Speaker  in  1874  by  the 
Tories,  who  had  then  gained  a  majority,  and  served  on 
until  1883;  in  1895,  Mr.  Tully,  a  stanch  Liberal,  was  re- 
elected by  Conservatives,  receiving  a  unanimous  vote. 
Yet  when  a  vacancy  occurs,  either  by  death  or  resigna- 
tion, the  party  in  the  majority  appoints  one  of  its  own 
members.  The  chief  requirements  for  the  office  are  strict 
impartiality  and  a  thorough  knowledge  of,  and  an  ex- 
perience with,  the  rules  and  precedents  of  the  House. 
"Firmness,  sound  judgment,  tact,  temper,  and  courtesy, 
a  clear  mind  and  an  upright  character  are,  of  course,  im- 
portant considerations."  ' 

The  same  good  qualities  are  required  in  an  American 
Speaker,  but  as  to  his  party  relations  the  case  Sources  of  the 
is  different.  The  American  Speaker  is  a  party  Speaker's 
leader.  He  is  expected  to  use  his  office  for 
party  purposes.  The  power  of  the  American  Speaker 
arises  from  three  sources: 

1.  His  power  of  appointing  the  committees. 
1  Follett's  The  Speaker,  p.  30. 


272  The  American  Republic 

2.  His  power  of  recognition,  by  which  he  assigns  a  member 
the  floor  to  address  the  House  or  make  a  motion. 

3.  His  position  as  chairman  of  the  Committee  on  Rules.1 

We  may  include  under  the  Speaker's  power  of  appoint- 
ment his  power  to  appoint  the  chairman  of  the  Commit- 
1.  The  tee  of  the  Whole   House  and   his   power  to 

Powe^of5  appoint  a  Speaker  pro  tern.,  for  a  period  not  to 
Appointment,  exceed  ten  days, — in  addition  to  his  appoint- 
ment of  the  regular  committees.  As  the  committees 
have  almost  absolute  power  over  legislation  it  will  be  seen 
that  this  power  of  appointment  gives  the  Speaker  tre- 
mendous influence  over  legislation.  No  other  officer  in 
the  Government  has  such  legislative  power.  "Legislation 
rests  with  the  committees;  they  may  initiate  what  they 
please ;  they  may  stifle  any  measures  which  have  not  their 
approval;  the  rule  that  no  bill  shall  be  discussed  without 
being  reported  by  a  committee  might  almost  as  well  read, 
without  being  approved  by  a  committee."4  This  power 
of  appointing  the  committees  comes  to  the  Speaker  not 
by  the  Constitution,  but  merely  by  the  rules  of  the  House. 
He  has  also  the  power  of  appointing  the  chairmen  of  all 
of  the  committees.  This  came  from  the  custom  that  has 
grown  up  of  considering  the  first  named  on  the  commit- 
tee as  its  presiding  officer. 

The  Speaker  seeks  to  make  up  the  committees  to  suit 
his  own  views  and  to  promote  his  party  policy.  If  the 
Speaker  is  opposed  to  legislation  on  a  certain  subject  he 
can  make  up  such  a  committee  on  that  subject  as  will 
effectually  bury  in  committee  all  proposals  of  legislation 
on  that  line.  If  he  favors  legislation  on  another  line 
he  can  appoint  a  committee  favorable  to  his  view.  Of 
course,  the  Speaker  is  influenced,  if  not  bound,  by  sec- 
tional and  party  influences,  and  perhaps  by  his  personal 

'  For  the  explanation  of  this  factor  in  the  Speaker's  power,  see  pp.  258  etseq. 
2  Follett,  p.  243. 


The  House  of  Representatives        273 

obligations,  in  determining  the  composition  of  his  com- 
mittees. 

Speakers  have  been  accused  of  bargaining  with  mem- 
bers before  their  appointment  to  important  chairmanships. 

"The  Speaker  has  an  opportunity  to  help  his  party  in  de- 
termining the  relative  strength  of  the  two  parties  on  a  com- 
mittee; he  can  put  the  strong  men  of  the  minority  on  the 
committees  that  have  little  influence,  and  the  weak  men  of 
the  minority  on  the  powerful  committees.  To  act  thus  would 
be  unfair,  of  course.  If  the  minority  is  to  be  given  any  place 
on  an  important  committee  it  is  only  just  that  it  should  be 
represented  by  its  able  men.  Still  there  are  many  shades  of 
fairness  and  unfairness.  Probably  no  Speaker  now  ever  so 
organizes  the  committtees  as  to  secure  to  the  minority  their 
full  proportionate  influence.  The  Speakers  who  come  near  to 
it  are  called  fair;  those  who  do  not  are  called  unfair  and 
partisan."  ' 

It  has  been  proposed  several  times  that  the  committees 
should  be  appointed  by  the  House  instead  of  by  the 
Speaker ;  and  that  the  minority  members  and  the  extent 
of  their  representation  on  the  various  committees  should 
be  determined  by  the  minority  itself.  The  result  of  this 
would  be  that  the  appointments  would  then  be  made  by 
the  caucuses  of  the  two  parties.  This  would  cause  "log- 
rolling," loss  of  time,  and  deadlocks. 

By  the  Speaker's  power  of  recognition  he  may  recog- 
nize a  member  who  addresses  the  Chair  and  assign  him 
the    floor,    with    the    privilege    of    making    a 

...  2.  The 

motion  or  addressing  the  House.     Originally,        speaker's 
it  was  expected,  and  was  the   rule,   that  the        Power  of 

r  Recognition. 

Speaker    should    recognize    the    member    who 
was  the  first  to  speak ;  but  in  practice  it  has  come  to  pass 
that  the  Speaker  uses  this  ordinary  parliamentary  duty 
for  political  and  party  purposes,  and  recognizes  only  such 
1  Follett's  The  Speaker,  p.  230. 


274  The  American  Republic 

persons  as  he  pleases.  When  a  member  rises  and  ad- 
dresses the  Speaker  he  may  be  asked,  "For  what  pur- 
pose? "  and  if  the  purpose  be  satisfactory  to  the  Speaker 
the  member  may  be  recognized  and  allowed  to  have  the 
floor.  Usually  it  is  prearranged  with  the  Speaker  that 
the  floor  is  to  be  assigned  to  members  in  a  certain  order.1 
As  a  rule,  the  Speaker  is  bound  by  certain  usages  in 
recognition.  He  will  recognize  a  committee  in  the  per- 
son of  its  chairman  in  preference  to  an  indi- 

Usage  and 

Unwritten       vidual  member;  during  the  various  stages  of  a 
Law  m  bm  tjie  member  who  has  the  measure  in  charge 

Recognition.      ,  #  ° 

is  preferred  for  recognition ;  a  member  is  usu- 
ally recognized  to  present  a  matter  of  privilege  or  a  ques- 
tion of  order;  during  a  debate  the  Speaker  should  give 
the  floor  alternately  to  members  of  each  party ;  and  the 
Speaker  generally  uses  his  power  of  recognition  in  con- 
junction and  co-operation  with  his  party  chiefs,  the  chair- 
men of  the  important  committees. 

But  while  these  unwritten  usages  may  limit  the  power 
of  recognition  to  an  extent,  there  are  times  when  the 
power  is  unlimited,  and  it  may  be  used  in  emergencies  in 
such  an  arbitrary  manner  as  to  give  the  Speaker  absolute 
control  of  legislation.  During  Mr.  Carlisle's  term  as 
Speaker,  the  Blair  Educational  Bill,  which  had  passed  the 
Senate  three  times,  was  not  even  allowed  to  be  voted 
upon  by  the  House.  The  Speaker  was  opposed  to  the 
bill,  and  he  would  therefore  not  allow  any  member  to 
move  to  take  it  up  for  consideration,  or  to  fix  a  day  for 
its  consideration.  Mr.  Blairie,  while  Speaker,  often  re- 
quired measures  to  be  amended  to  suit  his  views  before 
he  would  permit  them  to  come  before  the  House;  and 

1  "  The  extent  of  the  custom  is  shown  by  a  story  told  of  a  lieutenant- 
governor  of  a  Western  State  when  presiding  over  his  State  Senate ;  he 
turned  to  the  doorkeeper  and  said,  '  Go  out  and  find  Senator  Gunson — he 
is  somewhere  about  the  capitol — and  tell  him  that  he  has  been  recognized 
and  has  the  floor.'  " — Follett's  The  Speaker,  p.  250. 


The  House  of  Representatives        275 

repeatedly  the  Speakers,  by  withholding  recognition  from 
members,  have  refused  to  allow  the  House  to  vote  upon 
measures  which,  it  was  known,  the  majority  of  the  House 
would  readily  pass  if  an  opportunity  offered.  In  Eng- 
land, if  the  Speaker  of  the  Commons  recognizes  a  mem- 
ber who,  in  the  probable  opinion  of  the  House,  was  not 
the  first  to  address  him,  the  majority  may  overrule  the 
Speaker  and  decide  who  shall  address  the  House.  In 
America,  the  Speaker  decides,  and  he  sees  or  refuses  to 
see,  as  he  thinks  the  public  interest  may  require  or  his 
party  interest  may  dictate.  The  only  check  to  this  power 
is  the  sentiment  of  the  House,  the  moderation  among  his 
party  majority ;  that  is,  the  fear  that  if  he  go  beyond  all 
endurance,  if  he  be  not  fair  to  his  party  associates  and 
(where  party  interests  are  not  too  much  at  stake)  reason- 
ably fair  also  to  his  party  opponents,  the  power  which 
elevated  him  may  degrade  him.  For  the  Speaker  may 
at  any  time  be  removed  from  his  position  and  another 
Speaker  elected. 

It  must  be  understood  that  in  the  arbitrary  exercise  of 
this  power  of  recognition  the  Speaker  does  not  act  for 
himself  alone.  He  acts  for  a  cause ;  or  he  is  The  Speaker 
the  organ  of  his  party  majority.  He  is  the  is  a  Party 
organ  of  the  House,  it  is  true;  but  he  is  also 
the  organ  of  his  party  and  the  agent  of  that  party  to 
bring  things  to  pass.  The  House  stands  for  party  gov- 
ernment, and  for  the  acts  of  the  Speaker  the  party  ma- 
jority must  be  held  responsible.  It  is  through  him  they 
govern.  The  power  to  govern,  the  power  to  act  or  to 
force  action  when  the  House  desires,  and  thus  to  set 
aside  obstructions  and  suppress  those  who  would  prevent 
the  action  of  the  House, — this  power  must  be  lodged 
centrally  somewhere.  In  England  it  is  in  the  Cabinet; 
that  is,  in  the  central  guiding  committee  who  manage  the 
business  of  government,  all  of  whom  arc  members  of  Par- 
liament.    In  the  American  House  of  Representatives  this 


276  The  American  Republic 

power  is  in  the  Speaker,  who  acts,  presumably,  with  the 
advice  and  consent  of  the  Committee  on  Rules,  or  of 
the  Steering  Committee  of  his  party  managers,  of  which 
the  Speaker  is  chairman  ;  and,  if  need  be  in  order  to  carry 
out  party  ends,  no  one  can  obtain  the  floor  for  any  pur- 
pose except  by  the  Speaker's  consent.1  To  rebuke  the 
Speaker  is  to  rebuke  the  party,  and  the  question  whether 
there  is  in  his  office  and  in  this  power  of  recognition  a 
dangerous  one-man  power,  whether  one  man  may  be  so 
trusted,  is  merely  the  question  whether  the  party  majority 
may  be  so  trusted.  The  safeguard  against  an  unscrupu- 
lous Speaker  is  the  integrity  of  the  party  majority;  that 
against  an  unscrupulous  majority,  in  an  independent  and 
vigilant  people.2 

Th  s  eaker's       ^  *s  no*  *°  ^e  understood  from  this  account 
Power  is         of  the  Speaker's  power  that   his  power  is  un- 
limited.    His     powers    are    limited  and    pre- 
scribed : 

i.  By  the  Constitution  and  laws  of  the  United  States. 

2.  By  the  Rules  of  the  House. 

3.  By  the  precedents  and  practices  of  previous  Speakers. 

4.  By  general  parliamentary  usage. 

It  would  be  a  daring  Speaker  who  would  attempt  to  over- 
ride all  these  restraints,  although  some  Speakers  have 
been  accused  of  doing  so.  The  House  rules,  the  previ- 
ous precedents,  and  parliamentary  usage  should  all  be  in 
harmony  with  the  Constitution  and  the  laws,  but  if,  in 
the  judgment  of  the  Speaker,  they  should  be  in  conflict, 
he  decides  by  what  limitations  he  will  be  bound.      In 

1  A  new  member  of  the  House  had  a  bill  which  he  wished  to  urge.  Ap- 
proaching an  old  member  for  support  he  asked  whether  he  did  not  think 
his  bill  would  pass  the  House.  The  old  member  replied  that  it  was  more 
important  to  consider  whether  it  would  pass  the  Speaker. 

8  For  the  .Speaker's  power  as  chairman  of  the  Committee  on  Rules,  see 
the  account  of  the  Proceedings  of  the  House,  pp.  258  et  seq. 


The  House  of  Representatives        277 

1877,  when  an  attempt  was  made  in  the  House  to  ob- 
struct by  filibustering  the  declaration  of  President  Hayes's 
election  in  accordance  with  the  findings  of  the 

OpCclKCr  1x3.11— 

Electoral  Commission,  Mr.  Randall  used  his  daii  Forces 
power  as  Speaker,  and  especially  his  power  of  ^"^House 
recognition,  to  defeat  this  filibustering  attempt,  with  the  Find- 
He  declined  to  entertain  points  of  order,  and  Electoral 
he  even  refused  to  entertain  appeals;  and  al-  Commission, 
though  members  mounted  to  the  tops  of  their 
desks  and  with  menacing  arms  and  loud  shouts  de- 
manded recognition,  the  Speaker  had  neither  ears  to  hear 
nor  eyes  to  see  any  but  the  one  who,  as  he  knew,  would 
make  the  proper  motion, — the  motion  which  he  wished 
to  have  made  and  passed.  In  this  he  did  patriotically, 
and  against  his  party  interest,  what  the  majority  of  the 
House  and  of  the  country  desired  him  to  do.  But  in  do- 
ing so  he  overrode  the  rules  of  the  House  and  disre- 
garded preceding  decisions  and  all  parliamentary  usage. 
He  defended  his  course  on  the  ground  that  the  law  of  the 
land  took  precedence  over  the  other  limitations  upon  him, 
and  that  he  was  bound  to  act  in  harmony  with  the  law 
providing  for  the  Electoral  Commission.  "To  me,"  he 
said  afterwards,  "the  law  was  higher  than  the  rules,  when 
the  law  came  in  conflict  with  the  rules."  ' 

While  the  early  Speakers  were  party  men,  always 
elected  by  a  party  division,  they  were  not  always  party 
leaders.     They  did  not  employ  the  Speakership    Early  speak- 

to  direct  affairs.     The  election  of  Clay,  in  181 1,  ers-    Clay the 

1  ,     •  /•     1  First  Party 

marks   an   epoch   in  the  development   of   the  Leader  in  the 

Speakership.  Clay's  personal  popularity  Speakership, 
promoted  the  importance  of  the  office.  He  was  six  times 
elected  to  the  Speakership  during  a  period  (1810-22) 
when  the  Republican  party  was  coming  to  the  control  of 
the  politics  of  the  country  without  much  rivalry  or  op- 
position.    Clay  used  the  Speakership,  not  so  much  for 

1  Follett,  p.  123  ;   Cong.  Record,  47th  Cong.,  1st  Sess.,  p.  4308. 


278  The  American  Republic 

party  ends,  but  to  give  direction  to  his  country's  policy. 
Under  Clay,  who  exercised  personal  as  well  as  parliamen- 
tary power,  the  Speaker  became  the  legislative  leader. 
Clay's  object  was,  not  to  moderate  the  House,  but  to 
guide  it.  He  spoke  freely  upon  pending  measures,  and 
he  generally  voted  in  order  to  go  upon  record  before  the 
House  and  the  country.  In  becoming  Speaker  he  for- 
feited no  privilege  of  the  floor.  In  Committee  of  the 
Whole,  the  Speaker  has  merely  the  status  of  a  private 
member,  and  there  Clay  exercised  the  office  of  the  leader. 
He  performed  the  combined  offices  of  moderator,  mem- 
ber, and  leader. 

The  strength  that  came  to  the  leadership  through 
Clay's  personal  power  remained  to  abide  in  the  office. 
winthropas  Speaker  Winthrop  (1847-1849)  sought,  in  a 
Speaker.  measure,  to  restore  the  English  traditions  of 

the  Speakership  by  acting  merely  as  a  fair  parliamentary 
presiding  officer,  treating  friends  and  foes  alike.  But  he 
could  not  do  this  while  retaining  and  exercising  the  power 
of  making  up  the  committees.  Party  forces  and  interests 
were  too  strong  to  enable  a  Speaker  to  use  this  power 
and  remain  neutral.  Winthrop's  refusal  to  announce  his 
committee  policy  touching  the  slavery  question  in  the 
Territories  was  the  issue  that  led  to  his  defeat.  Giddings 
wrote  to  Greeley  in  1849: 

"  The  Speaker  exerts  more  influence  over  the  destiny  of  the 
nation  than  any  other  member  of  the  Government  except  the 
President.  He  arranges  the  committees  to  suit  his  own  views. 
If  a  Whig  in  favor  of  prosecuting  the  War  be  elected  Speaker, 
he  will  so  arrange  the  committees  as  to  secure  reports  approv- 
ing of  our  conquests  in  Mexico.  If  he  be  opposed  to  the  War 
he  will  so  arrange  them  as  to  have  reports  in  favor  of  with- 
drawing our  troops." 

The  power  of  the  Speakership  was  considerably  ad- 
vanced under  Mr.   Blaine  (1 869-1 876).      He  greatly  ad- 


The  House  of  Representatives        279 

vanced  the  power  of  recognition.  It  is  said  that  he  bar- 
gained with  men  for  the  privilege  of  the  floor.  "If  you 
will  make  your  resolution  so  and  so,  I  '11  see  Mr.  Blaine  as 
that  you  have  the  floor,"  '  and  many  members  speaker, 
preferred  to  introduce  bills  stamped  with  Mr.  Blaine's  in- 
terference and  approval  than  to  lose  their  bills  alto- 
gether. This  was  an  unusual  assumption  of  power,  for 
the  Speaker  who  can  frame  resolutions  and  alter  bills 
very  nearly  controls  the  House.2 

"  The  most  abiding  difficulty  of  free  government  The  c°mmit- 
is  to  get  large  assemblies  to  work  promptly  and  cabinet  and 
smoothly  either  for  legislative  or  executive   pur-  Congressional 

, ,  3  Government 

P°SeS-  Compared. 

Two  schemes  that  have  been  evolved  by  political  ex- 
perience for  meeting  this  difficulty  should  be  noticed. 

One  way  to  make  a  large  legislative  assembly  work 
well  is  to  provide  that  its  majority  shall  appoint  a  small 
group  of  responsible  party  leaders  and  follow  them  with- 
out question,  adopting  what  they  adopt,  rejecting  what 
they  reject.  This  group  of  leaders  make  up  the  execu- 
tive government  which  the  nation  has  chosen  to  support 
by  electing  a  House  to  support  it.  This  Government 
Committee  are  members  of  the  House ;  they  are  its  official 
governors,  and  they  are  responsible  for  what  is  done.  If 
they  do  well  and  propose  good  measures,  they  are  to 
be  retained.  If  they  do  ill  and  propose  bad  measures, 
they  are  to  be  turned  out,  and  another  government,  or 
ruling  committee,  is  to  be  put  in.  This  is  the  English 
way, — having  a  central,  ruling  committee  to  control  all 
legislation  and  government  business  in  the  House,  whose 

1  Nation,  vol.  xxvi.,  p.  226,  cited  by  Follett. 

2  Follett,  p.  104.  For  further  discussion  of  this  subject  the  student 
should  consult  Miss  Follett's  valuable  work,  The  Speaker  of  the  House  of 
Representatives,  1896. 

3  Bryce,  vol.  i.,  p.  155. 


280  The  American  Republic 

leadership  the  party  majority  in  the  Commons  are  sent 
up  to  support. 

This  enables  the  House  majority  to  act,  by  leading  the 
great  mass  of  its  members  to  do  what  they  are  told  to  do 
and  to  vote  as  they  are  told  to  vote ;  and  it  enables  the 
nation  to  hold  the  small  group  of  government  leaders  re- 
sponsible for  what  is  done.  Members  are  not  expected 
to  act  on  their  own  judgment.  They  must  follow  their 
leaders.  Mr.  Bagehot  relates  that  an  experienced  mem- 
ber of  the  Commons  once  said  that  he  had  never  but  once 
presumed  to  exercise  his  own  conscience  and  judgment 
in  determining  how  he  should  vote,  and  then  he  soon 
found  out  that  he  had  voted  wrong.  The  party  system 
requires  the  members  to  adhere  to  their  leader,  or  appoint 
another.  Otherwise  they  will  be  impotent  to  legislate  at 
all.  In  this  way,  if  the  nation  does  not  like  what  is  done 
it  knows  exactly  whom  to  punish.  It  can  turn  out  the 
head  leader,  the  premier,  who  is  chairman  of  the  govern- 
ing committee,  and  his  committee  must  go  with  him. 

This  system  concentrates  the  political  leadership  and 
talent  in  the  House  in  a  single  committee,  the  Cabinet, 
and  in  the  group  of  leaders  on  the  opposition  benches 
who  become  the  governing  committee  if  the  Cabinet  be 
turned  out. 

The  other  working  plan  is  to  divide  the  House  into  a 
large  number  of  small  groups,  committing  to  each  group 
The  Congres-  certain  questions  for  final  determination  or  re- 
sionai  Plan.  port.  The  groups  are  independent  of  one  an- 
other, and  each  pursues  the  business  committed  to  it  in 
its  own  way  without  reference  to  the  work  of  the  other. 
The  full  House  may  then  adopt  or  reject  the  conclusion 
of  the  few  men  appointed  to  attend  to  the  particular 
business  in  hand.  This  is  the  committee  system  seen  in 
our  national  House  of  Representatives. 

The  committee  system  in  America  arose  from  the  po- 
litical situation  existing  when  the  first  Congress  met.      It 


The  House  of  Representatives        281 

arose  from  natural  custom ;  it  was  not  created  or  insti- 
tuted by  design.  When  the  first  Congress  met  there  were 
no  government  ministers  present  whose  busi-    n  .  .     .^ 

°  m  r  Origin  of  the 

ness  it  was  to  draw  up  measures  and  shape  the  Committee 
business  of  the  assembly.     This  had  to  be  done  System, 

by  the  House.  It  was  natural  that  the  whole  business  of 
the  House  should  be  divided  among  its  members.  They 
were  all  equal  in  the  matter  of  official  responsibility,  and 
it  was  but  fair  to  divide  up  the  work  and  to  treat  all  alike. 
When  the  House  had  little  business  there  were  but  few 
committees.  At  first  the  House,  in  Committee  of  the 
Whole,  would  decide  upon  the  leading  principles  of  a 
measure  and  then  appoint  a  special  committee  to  report  a 
bill  accordingly.  As  regular  business  recurred  regular 
committees  met  the  requirements.  In  1802,  there  were 
but  five  committees.  Gradually,  with  the  growth  of  the 
country  and  the  increasing  business  of  the  House,  this 
number  grew  to  the  present  complex  system.  There  are 
now  fifty-five  regular  standing  committees  in  the  House, 
each  a  little  legislature  for  the  business  with  which  it  has 
to  deal.  The  following  classes  of  committees  should  be 
noticed : 

1.  The  Committee  of  the  Whole. — This  is  the  whole 
House  sitting  as  a  committee.  It  is  a  form  of  proceeding 
under  which  the  House  is  freer,  less  hampered  committee  of 
by  rules.  The  Speaker  calls  some  other  mem-  the  Whole- 
ber  to  the  chair,  there  is  freedom  of  debate,  the  previous 
question  is  not  applied,  though  the  House  in  Committee 
of  the  Whole  may  decide  to  apply  it  in  regular  session. 
In  Committee  of  the  Whole  the  chairman  cannot  use  the 
Sergeant-at-Arms  and  the  mace  to  preserve  order.  The 
members  sometimes  take  advantage  of  this  to  create  dis- 
turbance, and  then  the  Speaker  must  be  sent  for,  whose 
presence  restores  order.1 

2.  The   Caucus   Committee. — This  is    a    party   agency 

1  MacConachie,   The  Committee  System,  p.  166. 


282  The  American  Republic 

organized  for  party  purposes.  It  is  not  properly  a  com- 
mittee of  the  House  but  of  the  party,  to  attend  to  party 
business.      It  is  a  substitute  for  the  English  Whip.' 

3.  Special  or  Select  Committees. — These  are  created 
Special  f°r  special  purposes,  like  committees  of  con- 
Committees.  ference,  or  they  may  be  committees  for  un- 
usual purposes  and  occasions. 

4.  The  Standing  Committees.  —  Some  of  these  are 
licensed,  or  privileged  committees,  and  all  are  appointed 
standing  anew  for  every  Congress  by  the  Speaker.  He 
committees,  appoints  the  chairman  of  each  by  naming  him 
first  on  the  committee. 

To  one  of  these  standing  committees  every  bill  is  re- 
ferred. Generally  from  the  nature  of  the  bill,  or  proposed 
measure,  it  can  be  determined  to  what  committee  it 
should  be  referred.  But  sometimes  there  is  a  dispute 
about  this,  and  there  is  rivalry  among  the  committees  for 
the  control  of  a  bill.  On  such  a  dispute  the  fate  of  a 
measure  may  depend,  for  of  two  committees  contending 
for  the  possession  of  a  bill  one  may  be  favorable,  the 
other  hostile. 

Committee  meetings  for  the  consideration  of  a  bill  are 
usually  secret.  If  open  hearings  are  given  to  the  advo- 
Committee  cates  and  opponents  of  a  bill,  as  is  sometimes 
Sessions.  done,  reports  of  the  proceedings  are  not  usu- 
ally published  ;  and  how  a  member  votes  on  a  bill  in  com- 
mittee, or  what  influences  are  brought  to  bear  there, 
cannot  be  known ;  for  what  occurs  in  private  sessions  the 
members  are  pledged  not  to  reveal. 

The  committee  may  amend  a  bill  or  substitute  a  new 
one.  The  decision  of  a  committee  with  reference  to  a 
measure  is  practically  final,  for  while  the  House  may 
overrule  the  committee,  it  seldom  does.  Men  who  are 
absorbed  in  committee  work  on  other  measures  are  dis- 
posed to  accept  the  conclusions  of  those  men  who  have 

1  See  p.  299. 


The  House  of  Representatives        283 

been  especially  appointed  for  this  particular  business. 
They  are  the  men  appointed  to  hear  the  cause  and  decide. 
It  is  for  this  reason,  it  is  said,  that  our  legislation  is  by 
committees  and  not  by  the  House.  The  House  merely 
ratifies  the  decisions  of  the  committees. 

If  the  committee  is  unfavorable  to  a  bill  it  may  kill  the 
measure  by  reporting  adversely,  or  by  reporting  too  late, 
or    bv   not   reporting    at    all.      Most    bills    are 

J  1  11  The  House 

buried  in  committees,  as  they  ought  to  be;  may  Controi 
that  is,  the  bills  are  never  reported  back  to  the         its  com- 

'  mittees. 

House  for  the  action  of  that  body.  If  a  com- 
mittee is  smothering  a  good  bill  by  neglecting  to  report 
upon  it,  contrary  to  the  sentiment  of  the  House  and  of 
the  country,  the  House  may  order  the  committee  to  re- 
port, or  it  may  transfer  the  measure  to  another  commit- 
tee. These  processes  of  taking  a  bill  from  the  jurisdiction 
of  a  committee  are  not  usual  nor  easy  to  apply.  Com- 
mittee leaders  will  be  apt  to  stand  by  one  another  in 
defence  of  their  prerogative. 

When  a  committee  is  ready  to  report  on  a  measure,  for 
its  passage  or  its  rejection,  the  House  can  afford  but  a  very 
short  time  for  the  consideration  of  the  report.  Consideration 
Aside    from    specially    privileged    committees  ofaCommit- 

,  tee  Report. 

not  more  than  two  hours,  on  an  average,  can 
be  allowed  for  a  committee  report.  This  is  a  very  im- 
portant factor  in  making  the  action  of  the  committee  final 
in  legislation.  The  House  seems  almost  forced  to  accept 
what  its  committee  does.  The  chairman  of  the  commit- 
tee has  an  hour  at  his  disposal,  during  which  he  is  ex- 
pected to  explain  and  advocate  his  measure.  He  can  give 
but  a  bare  outline  of  his  bill  and  of  his  reasons  in  its  de- 
fence. He  yields  the  floor  to  others  for  brief  speeches. 
Advocates  and  opponents  of  the  measure,  who  have  been 
previously  agreed  upon,  speak  on  the  bill.  At  the  close 
of  the  allotted  time  the  chairman  of  the  committee  moves 
to  accept  the  report  and  at  the  same  time  he  moves  the 


284  The  American  Republic 

previous  question.  This  cuts  off  further  debate  and  the 
bill  is  then  hurriedly  voted  on  to  get  it  out  of  the  way  of 
other  measures  pressing  hard  for  time.  Members  wishing 
to  speak  must  arrange  with  the  Speaker  and  the  chairman 
of  the  committee  having  the  measure  in  charge.  In  con- 
sidering a  committee  report  the  House  proceeds  on  the 
principle  that  it  is  not  a  deliberative,  talking  body,  but 
that  it  is  a  deciding  body,  and  that  on  a  piece  of  commit- 
tee business  the  committee  should  have  control,  and  that 
what  the  House  does  should  be  done  through  it. 

The    advantages  of   our  committee   system 

Advantages  of  &  J 

the  Committee  may  be  briefly  summarized  : 

System.  l     jt   jg   a  convenient-   means  of  killing  off 

worthless  bills.  The  House  should  not  have  its  time 
taken  up  with  all  the  ten  thousand  schemes  proposed,  by 
request  or  design,  through  its  various  members.  It  could 
not,  if  it  would,  consider  one  tenth  of  these  measures. 
The  committees  can  dispose  of  them  rapidly  by  taking  no 
further  notice  of  them,  and  the  House  protects  itself  by 
requiring  that  a  measure  shall  be  considered  in  committee 
before  it  can  come  up  in  the  House. 

2.  It  enables  the  House  to  deal  with  more  bills. 
Many  committees  can  pursue  many  lines  of  investigation. 
The  House,  by  trusting  its  committees  and  accepting 
their  work,  can  accomplish  much  more  in  legislation  than 
it  could  otherwise  do.  In  this  the  House  takes  the  risk 
of  accepting  without  knowledge  the  bad  work  of  its  com- 
mittees as  well  as  the  good. 

3.  It  promotes  specialization  in  legislative  work. 
While  it  divides  the  business  of  the  House  by  separating 
the  able,  experienced  leaders,  the  chairmen  of  commit- 
tees, into  different  and  independent  fields  of  labor,  this 
may  be  compensated  for  by  assigning  to  each  leader  the 
work  for  which  he  is  especially  trained  and  disposed.  The 
chairman  of  the  Committee  on  Naval  Affairs,  or  on  For- 
eign Affairs,  or  on  Commerce,  may  have  made  the  subject 


The  House  of  Representatives        285 

of  his  committee  work  his  life's  study;  or  his  experience, 
training,  and  disposition  may  fit  him  especially  for  service 
on  this  particular  line,  though  often  the  chairman  of  a 
committee  has  to  learn  his  work  after  he  is  appointed  to 
it.  The  system  provides  that  every  subject  of  legislation 
may  have  applied  to  its  consideration  whatever  of  special 
ability  and  training  and  experience  the  House  can  com- 
mand. Senator  Dawes  on  Indian  Affairs,  Mr.  McKinley 
and  Mr.  Dingley  on  the  Tariff,  and  Mr.  Holman  or  Mr. 
Cannon  on  Appropriations  all  became  experts  in  their 
respective  fields  of  legislation.  No  single  body  of  men 
acting  as  a  central  committee  for  all  business  could  be  ex- 
pected to  secure  so  wide  and  efficient  a  grasp  on  all  the 
departments  of  legislation  as  these  men  had  over  their 
special  work. 

4.  The  committee  system  affords  a  plan  by  which 
Congress  can  scrutinize  and,  if  need  be,  expose  the  con- 
duct of  the  executive  departments.  The  committee  may 
investigate  any  department,  call  for  reports,  examine  wit- 
nesses, and  hold  to  a  strict  and  constant  accountability 
to  public  opinion  the  administrative  departments.  The 
-committee  and  Congress  can  control  the  departments 
only  to  the  extent  of  reporting  the  condition  of  affairs. 
This  power  of  the  committee  may  be  used  to  the  annoy- 
ance of  the  departments  as  well  as  for  the  enlightenment 
of  public  opinion. 

5.  The  committee  system  offers  a  suitable  means  of 
co-operation  between  the  executive  and  the  legislative 
departments.  It  is  in  the  committee  that  the  Adminis- 
tration can  properly  recommend  and  urge  for  passage  the 
public  measures  that  it  favors.  Cabinet  members  may 
not  urge  their  measures  on  the  floor  of  the  House,  but 
they  may  do  so  before  the  committees  either  in  person 
or  in  writing.  The  committees  may  bring  to  the  House 
all  of  the  advantage  of  executive  information  and  advice, 
and  it  is  in  this  way,  through  the  intermediary  of  the 


286  The  American  Republic 

committees,  that  the  legislative  and  executive  departments 
of  the  government  work  in  harmony  to  the  same  end. 
_.    .  But   the    American    committee    system    has 

Disadvantages  J 

of  the  Com-     serious   disadvantages.      Mr.    Bryce  and  other 
mittee  system.  political    0bservers   0f    our   Congress    cite   the 

following : 

(i)  It  breaks  up  the  unity  of  the  House;  (2)  cramps 
debate ;  (3)  lessens  the  harmony  of  legislation ;  (4)  facili- 
tates corruption  ;  (5)  reduces  responsibility  ;  (6)  dissipates 
the  ability  of  the  House  into  independent  groups;  and 
(7)  lowers  the  interest  of  the  nation  in  the  proceedings  of 
Congress. 

As  legislation  is  practically  shaped  in  the  committees, 
there  is  more  interest  in  the  proceedings  of  the  committee 
than  in  the  proceedings  of  the  House.  The  House  pro- 
ceeds in  little  independent  groups  working  in  many  direc- 
tions at  once,  practically  behind  closed  doors.  The  result 
of  this  is  that,  although  the  public  are  expected  to  keep 
a  close  watch  on  their  representatives,  the  people  cease  to 
watch  when  they  cannot  see  how  things  are  done,  or  who 
are  doing  them.  There  can  be  no  life  in  a  debate  in  the 
open  House,  and  but  little  use  for  one,  when  the  question 
for  debate  has  already  been  settled  in  the  committee. 
Some  set  speeches  may  be  made  for  campaign  purposes 
in  the  country,  but  no  member  can  hope  to  say  anything 
that  will  have  any  weight  in  convincing  his  colleagues, 
nor  can  he  in  any  way  hope  to  instruct  the  House  on  the 
proposed  measure.  The  committee  chairman  may  do 
something  in  this  direction,  but  his  contribution  is  an 
official  explanation,  not  a  discussion  of  the  proposed  bill. 

Laws  proposed  by  fifty  different  groups  without  corn- 
Mr.  Bryce-s  mon  oversight  by  any  one  interested  in  bring- 
cnticismon     •        ajj  ^e  laws  into  an  harmonious  code  are 

the  American         ° 

committee      sure  to  be  inconsistent  and  contradictory.     The 
system.  small  size  of  the  committee  and  the  secrecy 

of    its    proceedings    offer   to    the    "log-roller"    and    the 


The  House  of  Representatives        287 

"boocller"  an  excellent  opportunity  for  corruption.  The 
temptation  is  all  the  stronger,  as  wrong-doing  in  the  com- 
mittee is  the  more  difficult  to  expose.  The  votes  of  a 
very  few  men  may  change  the  result  in  committee.  The 
people  cannot  watch  the  doings  of  fifty  bodies,  and  as 
Congress  places  the  responsibility  for  wrong-doing  upon 
the  committees  and  the  committees  can  so  easily  evade 
it,  whom  can  the  people  punish?  Upon  this  evasion  of 
responsibility  Mr.  Bryce  says : 

"  In  England  if  a  bad  act  is  passed  or  a  good  bill  rejected, 
the  blame  falls  primarily  upon  the  Ministry  in  power  whose 
command  of  the  majority  would  have  enabled  them  to  defeat 
it,  next  upon  the  party  which  supported  the  Ministry;  then 
upon  the  individual  members  who  are  officially  recorded  to 
have  '  backed  '  it  and  voted  for  it  in  the  House.  .  .  .  But 
in  the  United  States,  the  Ministry  cannot  be  blamed,  for  the 
Cabinet  officers  do  not  sit  in  Congress;  the  House  cannot  be 
blamed,  because  it  has  only  followed  the  decision  of  its  com- 
mittee ;  the  committee  may  be  an  obscure  body,  whose  mem- 
bers may  be  too  insignificant  to  be  worth  blaming.  The 
chairman  is  possibly  a  man  of  note,  but  the  people  have  no 
leisure  to  watch  fifty  chairmen ;  they  know  Congress  and  Con- 
gress only ;  they  cannot  follow  the  acts  of  those  to  whom  Con- 
gress chooses  to  delegate  its  functions."  ' 

The  vital  need  of  providing  unity  and  re-  ^  Finance 
sponsibility  in  congressional  government  is  committees 
best  illustrated  by  the  practical  working  of  the  andw^ 
Finance  Committees. 

There  is  no  more  important  subject  with  which  a  gov- 
ernment deals  than  the  raising  and  disbursement  of  rev- 
enue. "The  revenues  of  a  State  are  the  State,"  says 
Burke.  If  the  people  cannot  control  their  own  revenues, 
if  they  cannot  discharge  and  punish  their  public  servants 
for  misconduct  in  raising  and  spending  public  money, 

1  Bryce,  vol.  i.,  p.  161. 


288  The  American  Republic 

republican  government  fails  at  a  vital  point.  It  is  upon 
this  subject  that  the  great  constitutional  struggles  of  the 
past  have  occurred.  If  representative  government  fails 
at  this  point  it  fails  in  all.  How  does  the  committee  sys- 
tem work  in  financial  legislation? 

Financial  bills  in  Congress  are  of  two  kinds:  (i)  Bills 
raising  revenue  by  taxation ;  (2)  bills  appropriating  rev- 
enue.    That  is,  tax  bills  and  appropriation  bills. 

In  England,  the  House  of  Commons  originates  neither 
bills  for  raising  revenue  nor  bills  for  spending  revenue. 
English  and  Once  a  year  the  Chancellor  of  the  Exchequer 
American  jayS  before  the  House  a  full  statement  of  the 
Money  BiSs  revenue  and  expenditure  of  the  past  year,  with 
compared.  an  estimate  of  the  needs  for  the  next  year,  and 
suggestions  of  the  means  of  raising  the  estimated  amounts. 
These  suggestions  are  embodied  in  resolutions,  and  when 
the  House  has  accepted  them  bills  are  brought  in  in  har- 
mony with  the  Chancellor's  plan.  The  estimates  are  de- 
bated in  the  Committee  of  the  Whole.  "Members  may 
propose  to  reduce  any  particular  grant  but  not  to  increase 
it ;  no  money  is  ever  voted  for  the  public  service  except 
that  which  the  Crown  has  asked  for  through  its  Minis- 
ters." '  The  Crown,  or  the  Ministry  on  its  behalf,  must 
not  ask  for  more  than  it  needs.  If  the  year  ends  with  a 
surplus  the  Ministry  have  overtaxed  the  people;  if  there 
be  a  deficit  they  have  been  incompetent  in  their  esti- 
mates. The  conduct  of  the  Government  in  these  respects 
shows  whether  it  is  capable  or  incapable,  whether  it 
should  be  turned  out  or  kept  in. 

In  the  United  States,  the  Secretary  of  the  Treasury 
corresponds  to  the  English  Chancellor  of  the  Exchequer. 
The  Secretary  sends  to  Congress  annually  a  written  re- 
port containing  a  statement  of  the  income  and  expendi- 
tures for  the  preceding  year;  he  sends,  also,  estimates  for 
the  coming  year,  with  recommendations  as  to  methods 

1  Bryce,  vol.  i.,  p.  175. 


The  House  of  Representatives        289 

of  taxation.  Here  the  Secretary's  agency  in  the  matter 
ends.  All  financial  legislation  is  then  conducted  by 
Congress  and  its  committees. 

The  committee  for  raising  money  is  the  Committee  on 
Ways  and  Means,  of  eleven  members.  This  is  the  most 
important  committee  of  the  House.  The  chair-  waysand 
man  of  this  committee  is  the  leader  of  his  party  Means  Com- 
on  the  floor,  ranking  next  to  the  Speaker.  The 
chief  business  of  this  committee  is  to  report  ways  and 
means  of  raising  money.  Revenue  bills  are  originated  in 
this  body,  although  the  committee  may  decide  to  adopt 
as  a  measure  to  be  reported  to  the  House  some  bill  com- 
municated to  it,  publicly  or  privately,  by  the  Secretary 
of  the  Treasury.  The  report  of  the  Secretary  of  the 
Treasury  is  referred  to  this  committee,  but  the  committee 
is  not  bound,  either  by  law  or  custom,  to  base  its  bills 
and  measures  upon  this  report.  If  the  Secretary  be  of 
the  opposite  party  from  the  majority  of  the  House,  which 
is  frequently  the  case,  the  committee  will  be  apt  to  dis- 
regard, or  it  may  even  antagonize  his  suggestions.  It 
would  seem  that  in  originating  and  presenting  bills  to  de- 
termine how  much  money  should  be  raised,  the  commit- 
tee ought  to  know  how  much  will  be  spent.  But  the 
committee  does  not  know  this,  for  the  various  spending 
committees  of  the  House,  the  chief  of  which  is  the  Com- 
mittee on  Appropriations,  may  cause  the  ap- 

.      .  rr      r  ,      /  J  ,       .  Need  of  Con- 

propnations  to  exceed  the  revenue  and  thus  certed  Action 
produce  a  deficit.     The  need  of  concerted  ac-  between 

r  .  Committees. 

tion  between  these  committees  is  apparent. 
Sometimes  the  Committee  on  Ways  and  Means  provides 
for  raising  much  more  money  than  the  Government 
needs, — the  tariff  being  levied  primarily  for  protection, 
without  regard  to  whether  more  or  less  of  revenue  be 
needed.  In  the  House  the  revenue  aspects  of  the  bills 
are  too  much  neglected,  and  debate  turns  very  largely  on 
whether  certain  provisions  involve  injury  or  benefit  to  the 


290  The  American  Republic 

policy  of  protection,  or  to  certain  influential  industries. 
The  man  most  responsible  for  financial  bills,  for  their 
composition  and  effect,  is  the  chairman  of  the  Committee 
on  Ways  and  Means,  and  the  principal  tariff  bill  usually 
takes  his  name, — as  the  "Mills  Bill,"  the  "McKinley 
Bill,"  the"Dingley  Bill." 

The   business  of  spending  money   formerly 

Committee  on  ,      m 

Appropria-  belonged  to  the  Committee  on  Appropriations, 
tions.  -pkjs  committee  was  but  second  in  importance 

to  that  on  Ways  and  Means. 

"  It  inherited  from  the  Committee  on  Ways  and  Means  the 
right  to  claim  the  floor  at  any  time  for  immediate  consideration 
of  its  reports.  Therefore,  any  measure  to  which  a  majority  of 
its  thirteen  members  and  the  Speaker  would  assent  was  assured 
of  consideration  in  the  House  and  might  even  be  forced  through 
as  a  '  rider  ' ;  and  any  measure  to  which  its  majority  refused 
assent  could  not  be  considered."  ' 

The  House  was  thus  under  the  guardianship  of  thirteen 
of  its  members.  It  was  said  that  Mr.  Randall,  of  Penn- 
sylvania, sometime  chairman  of  the  Committee  on  Ap- 
propriations, would  sit  in  the  House  with  his  pockets  full 
special  Privi-  of  special  appropriation  bills,  and  when  he  saw 
leges  of  the  anv  measure  coming  up  to  which  he  was  op- 
theaiAp^o-0  posed  he  would  rise  in  his  place  and  offer  an 
priations  appropriation  bill.  As  such  a  bill  always  had 
LkMsed66  the  right  of  way  it  would  block  the  other  meas- 
Committees.  ure>  anci  tilus  the  chairman  of  the  committee 
was  able  to  prevent  legislation  to  which  he  or  his  party 
was  opposed.  The  Committee  on  Ways  and  Means,  on 
Appropriations,  on  Printing,  and  on  Elections  were,  in 
this  respect,  especially  licensed  committees;  they  pos- 
sessed the  right  to  have  their  business  considered  at  any 
time. 

In   1883,  the  Committee  on  Rivers  and  Harbors  was 

1  MacConachie,  Congressioiial  Committees,  p.  180. 


The  House  of  Representatives        291 

made  a  permanent  committee  of  the  House,  and  grants 
of  money  for  "internal  improvements"  were  assigned 
to  it.  These  "internal  improvements"  in-  Committee  on 
elude  the  working  of  rivers  and  harbors,  and,  Rivers  and 
in  general,  the  improvement  of  navigation. 
This  is  a  source  of  great  waste,  extravagance,  and  corrup- 
tion,— a  means  by  which  members  seek  to  turn  public 
money  into  their  own  States  and  districts.  A  member 
votes  for  a  bill,  however  extravagant  and  wasteful,  if  it 
provides  a  good  appropriation  for  his  district, — if  by  it  a 
good  sum  of  public  money  is  to  be  spent  among  his  con- 
stituents. The  member  acts,  not  as  a  representative  of 
the  whole  country  bound  to  guard  the  interest  of  the 
whole  country,  but  as  the  representative  of  a  special 
locality.  This  practice  of  voting  away  public  money  to 
various  localities  is  known  as  the  "distribution  of  public 
pie,"  and  it  is  carried  out  by  means  of  "log-  „  Log.Roll. 
rolling."  "You  help  me  with  my  measure,  ing"and 
with  some  public  buildings  for  my  district,  and 
I  '11  help  you  with  yours."  A  California  member,  while 
acknowledging  that  an  appropriation  for  public  works 
was  flagrantly  extravagant  and  wasteful,  excused  his  urg- 
ing it  upon  the  ground  that  while  the  "pie  "  was  being 
passed  around  his  people  ought  to  have  a  share. 

In  1885,  the  House  further  changed  its  rules  so  as  to 
take  from  the  Committee  on  Appropriations  the  jurisdic- 
tion over  one  half  of  the  regular  annual  appropriation 
bills,  giving  to  eight  different  committees  of  the  House 
the  right  to  report  and  control  such  bills.1  These  special 
committees  are : 

The  Committee  on  the  Consular  and  Diplomatic  Service. 

The  Committee  on  Military  Affairs. 

The  Committee  on  Naval  Affairs. 

The  Committee  on  Post-Offices  and  Post-Roads. 

1  Hon.  J.  G.  Cannon,  in  the  House,  March  4,  1897. 


292  The  American  Republic 

The  Committee  on  Fortifications. 
The  Committee  on  Indian  Affairs. 
The  Committee  on  Pensions. 

These  committees,  with  the  Committee  on  Rivers  and 
Harbors,  having  the  power  to  determine  fully  one  half  of 
the  Government  appropriations, 

"  each  pursues  its  own  way,  without  reference  to  the  others, 
and  none  of  them  is  guided  further  than  it  chooses  by  the 
Treasury  Department.  All  the  expenditures  which  they  rec- 
ommend must  be  met  by  appropriation  bills,  but  into  the 
propriety  of  these  bills  the  Appropriations  Committee  cannot 
inquire."  ' 

The  Congress  whose  final  session  expired  in  March, 
causes  of  1897,  appropriated  $1,043,000,000, — the  largest 
Approprfa-11  sum  raised  by  any  Congress  in  our  history  since 
tions.  the  Civil  War.      Hon.  J.  G.  Cannon,  Chairman 

of  the  Committee  on  Appropriations,  said  at  this  time: 

"  The  appropriations  are  in  excess  of  the  legitimate  demands 
of  the  public  service.  This  is  not  chargeable  to  either  of  the 
great  political  parties.  It  comes  from  the  rules  of  the  House, 
from  the  rules,  practices,  and  courtesy  of  the  Senate,  together 
with  the  irresponsible  manner  in  which  the  Executive  submits 
to  Congress  estimates  to  meet  expenditures.  If  congressional 
appropriations  are  extravagant  and  beyond  the  revenues  of  the 
Government,  how  much  more  so  have  been  the  estimates  of  the 
Executive!"  2 

Mr.  Cannon  further  asserted  that  when  the  General  De- 
ficiency Bill  came  up  to  the  Senate  it  became  "a  mere 
vehicle  for  the  Senate  to  load  up  and  carry  through  every 

1  Bryce,  vol.  i. ,  p.  178. 

2  Congressional  Record,  vol.  xxix.,  Part  III.,  p.  73,  appendix,  54th  Cong., 
2d  sess.,  March  4,  1897.  See  also  the  remarks  of  Sayers  of  Texas,  on  be- 
half of  the  minority. 


The  House  of  Representatives        293 

sort  of  claim  that  should  have  no  consideration  except  as 
independent  bills  through  competent  committees."  In 
the  Rivers  and  Harbors  Bill,  which  passed  in  1896  over 
President  Cleveland's  veto,  one  work  involving  $1,000,- 
000  in  expenditure  was  afterwards  rejected  as  worthless 
by  the  War  Department,  while  another  of  $4,500,000 
was  subsequently  passed  for  half  that  sum. 

The  evils  are:  (1)  excessive  estimates  by  the  Executive 
departments,  (2)  defective  rules  of  Congress,  (3)  the  work- 
ing of  the  two  Houses  at  cross-purposes. 

The  revenue  bills,  having  passed  the  House,  are  con- 
sidered in  the  Seriate.  They  may  be  amended  there; 
some  items  may  be  stricken  out,  others  added.  The 
amended  bills  go  back  to  the  House,  and  the  House  usu- 
ally rejects  the  amendments;  the  Senate  adheres,  and 
a  conference  committee,  consisting  of  three  The  Conference 
members  from  each  body,  is  appointed ;  a  Committee, 
compromise  is  settled  hastily  and  in  secret,  and  is  ac- 
cepted in  the  hurry  of  the  last  days  by  a  reluctant  House. 

"  The  bills  are  scattered  among  eight  separate  committees; 
they  are  considered  with  no  attempt  at  mutual  responsibility, 
and  without  the  slightest  reference  to  the  revenue-raising 
plans  of  the  Ways  and  Means  Committee;  there  is  expert  'log 
rolling'  in  one  House  and  senatorial  courtesy  in  the  other; 
and  when  to  these  considerations  is  joined  the  fact  that  the 
President  must  either  approve  an  appropriation  bill  or  throw 
it  out  altogether  by  his  veto,  the  course  of  events  can  easily 
be  determined  in  advance."  ' 

Mr.  Bryce's  critcism  in  this  connection  is  of  interest 
and  importance : 

"  In  this  important  matter  of  managing  the  national  finances 
the  Administration,  instead  of  securing  that  each  department 
gets  the  money  that  it  needs,  that  no  money  goes  where  it  is 
not  needed,  that  revenue  is  procured  in  the  least  troublesome 

1  "  Congress  and  its  Appropriations,"  The  Nation,  vol.  lxiv.,  p.  196. 


294  The  American  Republic 

and  expensive  way,  that  an  exact  yearly  balance  is  struck, 
that  the  policy  of  expenditure  is  self-consistent  and  reasonably 
Mr.  Bryce's  permanent  from  year  to  year,  is  by  its  exclusion 
Criticism  of  from  Congress  deprived  of  influence  on  the  one 
Appropria-  hand  and  of  responsibility  on  the  other.  The  office 
tions.  of   Finance   Minister  is  put  into  commission  and 

divided  between  the  chairmen  of  several  unconnected  com- 
mittees of  both  houses.  A  mass  of  business  which  specially 
needs  the  knowledge,  skill,  and  economical  conscience  of  a 
responsible  ministry  is  left  to  committees  which  are  powerful 
but  not  responsible,  and  to  houses  whose  nominal  responsi- 
bility is  in  practice  sadly  weakened  by  their  want  of  appropriate 
methods  and  organization."  ' 

What  remedies  are  proposed  for  these  evils? 

Remedies  for  ,  .,...-,  , 

the  Abuses  of  I-  A  he  introduction  into  Congress  of  the 
the  Committee  English  system  of  ministerial  government,  or 

System.  . 

something  like  it.  Let  the  President  select  the 
members  of  his  Cabinet  from  members  of  Congress,  and 
let  these  continue  to  hold  their  seats  in  that  body  while 

doing  their  work  as  heads  of  departments. 
Government  Those  who  propose  this  remedy  hold  that 
in  congress  is  tne  evil  of  our  committee  practice  comes  from 

Not  Probable.  r  . 

the  American  dogma  of  separating  the  Legis- 
lative from  the  Executive  body.  These,  it  is  asserted, 
should  be  more  closely  connected,  and  if  the  Executive 
could  by  its  influence  and  control  bring  the  Legislative  de- 
partment to  act  in  harmony  with  it,  unity  and  responsi- 
bility in  legislation  would  be  promoted.  This  change 
would  necessitate  a  constitutional  amendment,  and  it  is 
not  probable  that  it  will  ever  be  accomplished.  The 
securing  of  an  amendment  is  such  a  slow,  difficult,  and 
ponderous  task, — none  having  been  added  now  for  a  hun- 
dred years  except  as  the  result  of  upheaval  and  war  while 
eleven  of  the  States  were  practically  under  military  gov- 
ernment,— that  this  change  may  be  dismissed  as  an  im- 
1  American  Commonwealth^  vol.  i.,  p.  212. 


The  House  of  Representatives        295 

probable,  if  not  impossible  one.  Besides,  our  written 
Constitution  provides  for  the  separation  of  the  depart- 
ments of  government,  and  in  their  practice  Americans 
have  come  to  accept  this  governmental  system.  What- 
ever change  is  found  desirable  and  necessary  in  bring- 
ing the  Executive  and  Legislative  departments  into  unity 
and  working  harmony  must  be  brought  about  by  the  law 
of  our  unwritten  constitution,  by  the  custom  and  usage 
of  allowing  the  Secretaries  to  influence  the  conduct  of 
Congress  by  proper  touch  and  contact  with  the  custom  will 
congressional  committees.      It  is  evident  that    Regulate  the 

&  Co-operation 

the  Executive  ought  to  be  in  constant  touch  0f  the  Depart- 
with    the  Committee  on  Appropriations,   and  ments- 

ought  to  be  able,  even  before  a  bill  is  reported  to  the 
House,  to  expose  its  defects  and  extravagances.  The 
committees  of  Congress  and  the  heads  of  departments 
should  work  together,  more  and  more,  to  bring  harmony 
and  honesty  to  financial  legislation.  This  can  be  done 
in  a  greater  degree  than  it  has  been,  without  a  constitu- 
tional amendment. 

2.  A  second  suggestion  as  a  remedy  for  the  evils  of 
the  committee  system  is,  that  all  appropriation  2  A  Central 
bills  be  sent  to  one  committee  for  their  first  Guiding 

_  ,  , .   .  ,  1  Committee. 

consideration.      In  addition  to  the  regular  com- 
mittees there  should  be  established  a  Congressional  tri- 
bunal made  up  from  both  Houses  to  consider      ACongres. 
all  the  special  claims  with  which  appropriation  sionai 

.         .      ,  ,       ,  .    ,     1  Tribunal. 

bills  are  now  loaded,  and  which  have  no  proper 
standing  in  such  measures.1 

While  the  two  Houses  are  co-ordinate  in  legislation 
and  responsibility,  and  while  the  Senate  has  the  power 
to  amend  revenue  bills  and  originate  appropriation  bills, 
it  will  be  impossible  to  concentrate  responsibility  for 
financial  legislation  in  a  single  committee  of  the  House.  If 
the  two  Houses  are  in  party  harmony,  a  joint  committee 

1  Suggested  by  Mr.  Cannon,  in  remarks  cited  on  p.  292. 


296  The  American  Republic 

of  the  kind  suggested  might  be  held  by  the  country 
responsible  for  the  kind  of  financial  legislation  which  it 
permits.  But  if  the  House  and  Senate  are  of  different 
parties  and  their  Joint  Conference  Committee  on  Fi- 
nance cannot  agree,  the  people  will  have  to  rely  upon  the 
elections  and  electoral  methods  to  bring  the  Houses  into 
harmony, —  by  disapproving  and  changing  the  political 
complexion  of  that  body  whose  course  has  seemed  blame- 
worthy. 

3.  As  a  means  of  adding  further  to  party  responsibility 
it  is  proposed  that  the  Speaker,  instead  of  giving  repre- 
3.  constitu-  sentation  on  the  political  committees  to  the 
tion  of  the       minority  party,  should  make  up  these  commit- 

Committees  •       •         1       n        1 

from  one  tees  entirely  from  his  party  majority.  By  the 
Party  Only,  "political  committees  "  is  meant  those  which 
shape  administration,  like  the  Committee  on  Appropria- 
tions, Ways  and  Means,  the  Military,  Naval,  Inter-State, 
and  Foreign  Commerce  Committees,  and  Committees  on 
Reform  in  the  Civil  Service,  Rivers  and  Harbors,  Rules, 
and  Territories."2  Not  both  parties,  as  now,  but  only 
one  party  should  have  places  on  the  ruling  committees. 
The  party  in  power  would  then  be  more  fully  in  power, 
and  it  would  then  be  more  directly  responsible  for  the 
work  done.  This  change  could  be  brought  about  by  the 
action  of  the  Speaker  alone.  The  minority  members  of 
the  House,  like  those  in  the  Commons  on  the  Opposition 
benches,  would  then  be  merely  critics  and  censors  of  those 
responsible  for  the  conduct  of  the  House.    This 

The  Minority  ,,,  -         11  ii.i_.L-r 

as  Censors  of  would  be  contrary  to  all  precedent,  but  it  a  ca- 
the  Conduct  of  pable  and  courageous  Speaker,  like  Mr.  Reed, 

the  Majority.     \         .  .  b  ,  1  r 

should   venture  to  set  another   precedent  tor 
a  century  to  come,  he  might  do  much  to  promote  the 

1  See  Professor  Woodrow  Wilson's  Congressional  Government,  p.  99,  and 
also  a  suggestive  pamphlet  by  Capt.  F.  E.  Chadwick,  of  the  American 
Navy,  on  An  Unsolved  Problem  of  Our  Governmental  System. 

2  Captain  Chadwick. 


The  House  of  Representatives        297 

efficiency  of  party  government  and  to  enable  the  people 
the  more  easily  to  hold  their  public  servants  to  account. 

"There  would  then  certainly  be  a  compact  opposition  to 
face  the  organized  majority.  Committee  reports  would  be 
taken  to  represent  the  views  of  the  party  in  power,  Woodrow 
and  instead  of  the  scattered,  unconcerted  opposi-  Wilson  on 
tion,  without  plan  or  leaders,  which  now  sometimes  sponsibmty  in 
subjects  committee  proposals  to  vexatious  hindran-  Legislation, 
ces  and  delays,  there  would  spring  up  debate  under  skilful 
masters  of  opposition,  who  could  drill  their  partisans  for 
effective  warfare  and  give  shape  and  meaning  to  the  purposes 
of  the  minority.  But  of  course  this  cannot  be  done  so  long 
as  the  parties  are  mingled  together  in  a  common  organization. ' '  * 

Of  this  proposal  Captain  Chadwick  says : 

"  If  the  Committees  on  Appropriations,  Ways  and  Means, 
and  on  Rules,  were  united  and  made  up  wholly  from  the  pre- 
vailing party,  it  would,  with  its  power  to  raise  money  and  with 
the  general  control  which  it  should  have  of  bills  for  expenditure 
drafted  by  other  committees,  as  those  of  Rivers  and  Harbors, 
Public  Buildings  and  Grounds,  etc.,  be  able  to  control  the 
national  expenditures.  The  party  in  power  would  thus  become 
wholly  responsible  for  the  means  of  raising  money  Captain 

and  for  the  money  it  spends ;  for  the  things  it  does  Chadwick 
and  for  the  things  it  fails  to  do.  And  if  to  this  Committee 
were  added  the  Committee  on  Rules,  the  new  Committee 
would  become  a  great  Steering  Committee,  taking  also  the 
place  of  the  party  caucus,  and  we  should  have  in  this  a  body 
of  men  unable  at  least  to  shift  responsibilty  either  in  Congress 
or  before  the  country;  and  this  responsibility  would  finally 
attach  to  the  party  to  which  it  belonged  with  a  weight  now 
almost  altogether  wanting."  3 

It  must  always  be  borne  in  mind,  however,  that  neither 
rules  nor  machinery  nor  organization  will  ever  prevent 

1  Wilson's  Congressional  Government,  pp.  99,  100. 
s  An  Unsolved  Problem,  p.  8. 


298  The  American  Republic 

misgovernment,  if  the  spirit  and  purpose  of  misgovern- 
ment  abide  with  those  entrusted  with  responsibility  and 
power.  No  doubt  one  committee  will  do  better  than 
eight  or  twenty.  An  organized  party  committee  of  the 
strongest  congressional  leaders,  on  which  the  pressure  of 
public  opinion  can  be  brought  to  bear,  may  be  the  means 
of  bringing  party  pressure  upon  their  followers,  and  this 
would  do  much  to  check  waste.  But  no  device  can 
change  the  disposition  of  Congressmen  to  extravagance 
and  corruption. 

"  The  Congressman  who  wishes  to  bleed  the  public  treasury 
must  be  told  that  there  are  larger  interests  to  consider  than  a 
government  building  for  his  town  or  the  pension  agents  of  his 
district,  or  his  contractor  acquaintances  in  the  lobby,  or  there 
will  be  no  hope  of  improvement  in  this  vicious  legislation."  ' 

This  concentration  of  responsibility  on  a  few  party 
leaders  is  being  worked  out  partly  by  the  increasing  im- 
portance and  power  of  the  majority  of  the  House  "Steer- 
ing Committee,"  the  Speaker,  and  his  party  colleagues  of 
the  Committee  on  Rules.  Under  the  party  government 
of  the  House  it  is  coming  to  pass  that  what  the  House 
does  it  does  by  the  consent  of  this  committee.  These 
party  leaders,  and  especially  the  Speaker,  should  be  held 
strictly  responsible.  If  they  do  well  they  should  receive 
the  credit ;  if  they  do  ill,  a  House  should  be  elected  under 
obligation  to  displace  these  leaders  from  power,  and  to 
appoint  others  in  their  stead.  Without  a  public  senti- 
ment quick  to  condemn  misgovernment  other  remedies 
are  hopeless. 

In  the  House  of  Representatives,  as  in  the  House  of 
Commons,  each  party  has  its  appointed  recognized  leader. 
The  leader  in  England,  however,  has  more  control  of  his 
party  followers  than  in  America.      In  each  case  the  leader 

1  The  Nation,  vol.  lxiv.,  p.  196. 


The  House  of  Representatives        299 

has  an  agency  for  securing  united  and  reliable  party  ac- 
tion. In  England  this  party  agency  is  the  Parliamentary 
"Whip";  in  America  it  is  the  House  "Cau-  TheEnglish 
cus. ' '  The  Whips,  or  Whippers-in,  in  the  Com-  whip  and  the 
mons,  are  appointed  by  the  party  leaders  to  ^J" 
aid  them  in  conducting  the  party  business  in 
the  Commons.  The  Government  Whip  is  likely  to  be  a 
leading,  experienced  member  who  has  the  confidence  of 
the  Ministry.  He  is  expected :  (a)  to  inform  Functions  of 
the  members  on  Government  business,  to  ex-  the  Whip- 
plain  to  them  the  merits  of  a  measure,  or  to  tell  them 
how  to  vote,  if  from  absence  or  inattention  they  are 
ignorant  of  the  business  in  hand;  (b)  to  "keep  a  house," 
that  is,  a  quorum,  ready  to  pass  Government  measures 
when  they  come  up,  to  make  sure  that  the  party  ma- 
jority are  there  ready  and  willing  to  pass  the  party 
measures ;  (c)  to  act  as  tellers,  to  count  members  when 
they  pass  out  on  a  party  division;  (d)  to  obtain  pairs  for 
party  members,  if  they  cannot  be  present  at  a  division ; 
(e)  to  keep  touch  of  party  opinion  in  the  House  and  to  in- 
form the  leader  to  what  extent  he  may  depend  upon 
"party  support.  Without  the  Whip  the  Ministry  could 
not  be  sure  of  its  majority. 

In  the  House  of  Representatives  these  functions  are 
performed,  wherein  they  are  needed  at  all,  by  the  party 
caucus  or  by  the  Caucus  Committee  which  acts  as  a 
party  steering  agency.  It  is  not  so  important  in  Con- 
gress that  every  measure  put  forward  by  the  leaders 
should  pass,  for  no  one  can  be  turned  out  by  an  adverse 
vote.  Party  members  are  not  so  completely  Methods  of 
under  the  control  of  the  leaders,  and  they  more  the  Party 
freely  and  more  frequently  vote  their  individ- 
ual ways.  If  it  is  desired  by  the  leaders  to  bring  all  the 
party  members  solidly  into  line  for  a  measure  it  must  be 
made  a  "caucus  measure."  The  Caucus  Committee  ap- 
pointed by  each  party  at  the  beginning  of  each  Congress 


300  The  American  Republic 

will  call  a  meeting  of  all  the  party  members,  and  if  it  is 
decided  at  this  meeting  to  approve  the  measure,  the  obli- 
gations of  the  caucus  and  the  force  of  party  loyalty  are 
then  brought  to  bear  to  induce  all  to  vote  for  the  measure. 
Objecting  members  are  "whipped  into  line"  by  these 
party  influences.  It  is  not  often  that  individual  members 
bolt  the  caucus  action.  The  member  who  consents  "to 
go  into  caucus  "  on  a  measure  is  in  honor  bound  by  the 
party  action.  "To  bolt"  would  bring  him  into  party 
disfavor,  and  he  would  be  likely  to  fail  of  renomination. 
When  there  has  been  no  caucus  action  on  a  measure  a 
member  is  free  to  vote  as  he  pleases  and  still  claim  good 
party  standing,  though  he  may  differ  from  a  majority  of 
his  party  colleagues.  This  allows  a  pretty  wide  difference 
of  opinion  within  a  party  without  causing  disruption. 
Disruption  occurs  when  men  bolt  party  conventions  and 
party  caucuses.  Not  so  many  questions  are  made  the 
basis  of  party  voting  in  the  House  of  Representatives  as 
in  the  Commons,  but  on  party  questions  party  forces  are 
as  strong  and  party  lines  are  as  closely  drawn. 

Collisions  sometimes  occur  between  the  Senate  and  the 
House,  when  the  two  bodies  cannot  agree  on  important 
„  ... .      t      measures   of  legislation.     When  the  disagree- 

Colhsions  be-  =»  ° 

tween  the  Two  ment  over  a  bill  cannot  be  adjusted  a  dead- 
Houses.  \ock  occurSj  an(j  the  proposed  measure  is  lost 

or  postponed.  If  the  collision,  or  deadlock,  occurs 
over  a  bill  appropriating  money  necessary  for  the  main- 
tenance of  the  Government,  or  upon  some  important 
measure  that  the  country  is  demanding,  or  that  both 
Houses  feel  should  be  passed,  some  solution  of  the 
_    „    .        difficulty  will  be  found  in  the  Conference  Com- 

The  Confer-  J 

ence  Com-  mittee.  Each  House  appoints  a  special  com- 
nuttee*  mittee,  and  these  two  committees  are  expected 

to  meet  in  conference  and,  if  possible,  adjust  the  differ- 
ence. The  result  is  generally  a  compromise  of  the  differ- 
ences that  exist.     The  famous  Missouri  Compromise  of 


The  House  of  Representatives        301 

1820,  for  instance,  was  evolved  in  this  way.  If  the  two 
conference  committees  unite  in  a  report  to  both  houses  in 
support  of  the  compromise  and  the  report  be  supported 
there  by  all  the  conferees,  the  arrangement  will  probably 
be  accepted  by  both  Houses.  If  no  arrangement  can  be 
reached  in  the  Conference  Committee,  the  proposed  meas- 
ure, of  course,  fails. 

The  legislative  "rider"  '  is  sometimes  employed  by  one 
House  against  the  other,  in  order  to  coerce,  or  induce, 
the  passage  of  measures.  In  1820,  the  Senate,  Legislative 
in   order  to   overcome   the   opposition   of   the  Riders. 

House  to  the  admission  of  Missouri  as  a  slave  State,  at- 
tached the  bill  admitting  Missouri  as  a  "rider"  to  the 
Maine  Bill.  The  two  were  sent  to  the  House  bound  in 
one  bill  to  be  lost  or  passed  together. 

In  conflicts  of  this  kind  between  the  houses  the  Senate 
will  be  likely  to  win  the  greater  number  of  points.  Its 
members  are  more  experienced,  and  as  many  of  them 
have  been  members  of  the  House  they  know  the  ways 
and  weaknesses  of  that  body;  and  as  the  Senate  is  a 
smaller  body  its  majority  can  be  held  together  better. 
Being  a  permanent  body  the  Senate  can  afford  to  wait ; 
if  it  does  not  get  what  it  wishes  this  year,  there  are  years 
yet  to  come  for  at  least  two  thirds  of  its  members,  while 
the  Representatives,  being  members  of  a  transient  body, 
may  be  serving  their  last  year.  A  Representative's  po- 
litical fortunes  and  influence  may  be  enhanced  by  defer- 
ring to  the  Senators. 

Although  the  Constitution  designed  the  separation  of 
the  Executive  and  Legislative  departments,  some  political 
connection  between  the  two  has  been  inevita-  Relations  of 
ble.  Political  practice  has  brought  them  into  Executive  and 
necessary  relations.  A  recent  President  is  said 
to  have  complained  that  he  "had  a  Congress  on  his 
hands  "  ;  while  managing  the  affairs  of  the  Administration 

1  P.  307. 


302  The  American  Republic 

he    had    also    to    manage    Congress, — to    induce    it    to 

promote,   or  to  prevent  its   interfering  with,   the  public 

interests.      This  indicated  Executive  presump- 

Each  Depart-  .  _  _ 

ment  is  Re-  tion,  and  it  was  a  reflection  upon  Congress,  it 
sponsible  to     was  resented  by  a  member,  who  complained 

the  People  for  *  .  ,, 

its  own  that  Congress     had  a  President  on  its  hands, 

conduct.  whom  they  had  to  instruct  and  restrain.  The 
departments  are  not  thus  answerable  to  one  another. 
The  legislative  policy  of  Congress  is  not  to  be  guided  by 
the  Executive,  nor  the  Executive  policy  by  Congress. 
Each  department  is  to  attend  to  its  own  business  and 
neither  is  to  handle  or  control  the  other.  While  the 
Constitution  does  not  acknowledge  a  political  relation 
between  the  departments,  nevertheless,  political  usage, 
outside  of  the  Constitution,  or  in  violation  of  it,  has  led 
the  two  departments  to  bring  their  influence  to  bear  the 
one  upon  the  other. 

Indirectly  the  President  may  influence  the 
Prudent  may  action  of  Congress  in  the  following  ways : 
influence  I#   gy  njs  message  to  Congress. 

The   annual   messages   of  Washington   and 

John  Adams  were  delivered  before  the  two  Houses  in 

person.     In  those  days  the   President's  speech  on  this 

state  occasion  at  the  opening  of  Congress  was  an 

The  Presi-  r  , 

dent's  affair  of  considerable  pomp  and  ceremony,  cor- 

Message.  responding  to  the  king's  speech  from  the  throne. 
Jefferson  discontinued  this  custom  and  sent  a  written  mes- 
sage, a  precedent  which  has  been  followed  since.  The 
President's  annual  message  is  how  a  long  and  able  paper, 
reviewing  the  state  of  the  country  and  urging  its  needs 
upon  the  attention  of  Congress.  It  serves  merely  as  ad- 
vice to  Congress  which  that  body  is  in  no  wise  bound  to 
follow.  The  President  may  at  any  time  send  a  special 
message  to  Congress,  urging  action  on  a  particular  cause. 
2.  By  calling  Congress  into  extraordinary  session  and 
urging  particular  measures  of  legislation. 


The  House  of  Representatives        303 

This  is,  on  occasions,  a  very  effective  influence,  though, 
if  Congress  be  hostile  to  the  President's  proposals,  it  may 
reject  them  and  adjourn  without  action. 

3.  By  the  use  of  his  veto,  or  by  the  knowledge  that  he 
will  use  the  veto  against  proposed  legislation.  A  bill 
may,  on  this  account,  be  modified  to  meet  the  President's 
views,  privately  communicated.  The  President  may  let 
it  be  known  that  he  will  veto  or  approve  bills  in  which 
members  are  interested,  as  a  means  of  influencing  their 
conduct  on  other  measures  favored  or  opposed  by  the 
Executive.  This,  of  course,  is  unbecoming  Executive 
conduct. 

4.  By  contact  and  communication  through  the  Execu- 
tive departments,  with  the  congressional  committees  and 
their  chairmen. 

It  is  the  unwritten  law  that  the  Cabinet  officers  may 
not  appear  before  the  houses  to  advocate  their  measures. 
But  there  is  nothing  in  the  Constitution  or  the  written 
law  to  prevent  this,  and  it  would  be  altogether  proper 
for  a  Secretary  to  appear  in  Congress.  In  the  early  years 
of  Congress,  however,  proposals  to  have  a  Secretary  be- 
fore Congress  were  resented  as  involving  Executive  inter- 
ference or  control.  When  Hamilton  was  called  upon  in 
1790  for  his  famous  Report  on  the  Public  Credit,  the 
question  arose  whether  it  should  be  submitted  in  person, 
to  be  spoken,  or  in  writing,  to  be  defended  there  by  some 
Representative  who  could  be  relied  upon  to  reflect  the 
opinion  of  the  Secretary.  The  Congress  preferred  the 
written  report,  and  subsequent  Secretaries  have  followed 
this  precedent,  and  it  would  now  be  very  unusual  for  a 
Secretary  to  appear  before  one  of  the  houses  to  present 
or  advocate  his  measures.  He  may,  however,  appear  be- 
fore any  one  of  the  committees.  The  Secretary's  written 
reports  are  the  formal  and  usual  way  of  making  his  in- 
fluence felt  on  the  Committee,  but  there  are  more  positive 
ways.     These  come  by  personal  interviews  and  contact 


304  The  American  Republic 

with  the  committee  chairmen  and,  on  proper  occasions, 
by  personal  recommendations  and  arguments  before  the 
committees  themselves.  The  committee  takes  the  initia- 
tive in  bringing  the  Secretary,  or  one  of  his  departmental 
officers,  before  it.  He  may  be  summoned  as  a  witness, 
or  called  upon  to  answer  questions  or  to  give  information, 
and  he  may  be  allowed  to  advocate  his  proposals.  A 
favorable  committee  may  thus  enable  a  Secretary  to  bring 
before  it,  and,  through  it,  before  Congress  and  the  coun- 
try, the  arguments  in  favor  of  his  policy.  Though  this 
is  an  indirect,  it  is  a  very  effective,  way  of  influencing 
Congress. 

5.   By  the  distribution  of  executive  patronage. 

The  President  may  give  places  to  Congressmen  or  their 
friends,  if  they  consent  to  support  his  policy  in  Congress, 
and  he  may  withhold  appointments  from  those  who 
refuse.  This  is  sheer  bribery  and  a  palpable  source  of 
corruption.  This  would  lead  Congressmen  to  vote,  not 
according  to  their  own  independent  judgment,  not  ac- 
cording to  the  merits  of  the  bill  or  the  interests  of  the 
country,  but  according  to  the  party  and  pecuniary  inter- 
ests of  themselves  or  their  friends.  It  was  in  this  way 
the  English  kings,  by  the  places  and  favors  which  they 
had  to  bestow,  corrupted  and  controlled  Parliament  and 
exercised  executive  tyranny.  In  practical  politics  it  is 
known  that  this  practice  exists  to  a  degree,  but  public 
sentiment  is  so  pronounced  against  it  that  no  President, 
or  his  friends,  would  admit  that  he  had  been  guilty  of 
such  corrupt  abuse  of  his  power.1  A  President  who 
would  do  so  would  deserve  impeachment  and  disgrace, 
and  the  people  cannot  be  too  jealous  in  guarding  their 
representatives  against  such  a  palpable  and  corrupting 
abuse  of  executive  power.  In  the  same  way,  but  in 
a  more  vulgar  form,  the  executive  departments  have 
been  charged  with  attempting  to  influence  Congress  by 

1  See  p.  186. 


The  House  of  Representatives        3°5 

awarding  department  contracts  to  nominees  of  Congress- 
men. 

On  the  other  hand,  Congress  may  bring  in-  How 

fluence  to  bear  upon  the  President  in  the  fol-         congress 

i         •  may  Influence 

lowing  Ways:  the  Executive. 

1.  By  resolution,  calling  upon  the  President, 

or  an  executive  department,  to  take  a  certain  course,  or 
censuring  steps  already  taken.  The  President  is  not 
bound  to  notice  such  a  resolution,  nor  in  any  way  to  act 
upon  it.  But,  as  a  rule,  a  President  prefers  not  to  have 
his  course  condemned  by  the  legislative  branch  of  the 
Government.  When  President  Jackson  was  censured  by 
the  Senate,  in  1833,  for  the  removal  of  the  deposits  from 
the  Second  United  States  Bank,  the  President  sent  his 
protest  to  the  Senate,  and  his  political  friends  did  not  rest 
until  the  resolution  of  censure  was  expunged.  While  a 
resolution  may  not  alter  in  the  least  the  course  of  the 
President,  it  may  lead  him  to  defend  his  policy  before 
Congress  and  the  country. 

2.  By  an  investigating  committee.  This  may  be  ap- 
pointed to  inquire  into  the  course  of  a  department,  to 
expose  it  before  the  public,  or  to  embarrass  the  President 
politically,  or  to  make  campaign  capital  against  him. 
This  committee  may  summon  a  Cabinet  officer  to  appear 
before  it.  The  Secretary  may  legally  refuse,  though  he 
is  not  likely  to;  but  he  is  not  bound  to  answer  the 
committee's  questions,  nor  to  help  it  obtain  the  infor- 
mation which  it  seeks.  The  Secretary  is  responsible  to 
the  President,  not  to  Congress  or  its  committees.  A 
Secretary  will  go  a  good  way  to  avoid  the  annoyance  of 
an  investigation,  and  if  he  should  refuse  co-operation  by 
trying  to  conceal  information  he  would  bring  his  depart- 
ment under  public  suspicion. 

3.  Congress  may  refuse  legislation  which  the  President 
requests,  in  order  to  embarrass  him  or  force  him  to  com- 
ply with  the  wishes  of  Congress.     This  would  be  on  a  par 


306  The  American  Republic 

with  the  President's  vetoing  a  bill  favored  by  Congress  in 
order  to  bring  that  body  to  his  terms.  It  is  beneath  the 
dignity  of  either  department,  and  neither  should  be  moved 
by  such  tactics. 

4.  By  impeachment.  The  fact  that  Congress  possesses 
this  weapon  of  attack  will  restrain  the  President  from  any 
executive  procedure  on  which  impeachment  proceedings 
might  be  based  by  a  hostile  Congress.  Impeachment  is 
a  heavy  weapon.  It  will  not  be  brought  to  bear  against 
the  President  except  in  extraordinary  cases,  or  for  po- 
litical purposes,  to  remove  obstruction  to  the  policy  on 
which  Congress  is  determined. 

5.  Congress  may  pass  bills  restricting  the  scope  of  ex- 
ecutive acts,  requiring  a  certain  course  of  the  President  or 
his  Secretaries,  and  forbidding  them  to  do  what  they  had 
hitherto  been  left  free  to  do.  That  is,  they  may  attempt 
to  tie  the  Executive  down  to  the  course  prescribed  by 
Congress.  The  President  may  veto  the  bills  restricting 
his  executive  action.  If  Congress  pass  them  over  his 
veto  and  the  President  still  disregard  and  refuse  to  obey 
them,  alleging  that  they  are  unconstitutional  and  that 
they  interfere  with  his  executive  independence,  he  would 
be  subject  to  impeachment.  The  President  may  be  right 
in  his  constitutional  views,  and  his  views  may  even  have 
the  endorsement  of  the  Supreme  Court ;  but  the  Senate 
will  judge  for  itself  of  the  constitutionality  of  the  laws 
that  the  President  has  disregarded,  and  against  the  Sen- 
ate's findings  in  the  trial  executive  and  judicial  opin- 
ions will  not  save  him.  It  may  be  proper,  as  a  means  of 
determining  which  is  right  in  such  a  conflict,  and  as  a 
means  of  testing  the  legality  of  particular  executive  acts 
under  the  disputed  laws,  to  have  a  case  brought  before 
the  Supreme  Court.  If  the  Court  decides  against  the 
President  and  he  still  refuses  to  obey  and  enforce  the 
law,  impeachment  is  then  the  only  weapon  which  Con- 
gress can  use  against  him.      If  two  thirds  of  both  Houses 


The  House  of  Representatives        307 

have  voted  for  the  law  which  the  President  is  defying,  it 
is  probable  in  such  a  case  that  the  President  would  be 
removed  by  impeachment.  This  process  of  bringing  the 
President  to  terms  would  be  difficult;  for,  in  the  first 
place,  it  might  be  difficult  to  get  a  case  before  the  Su- 
preme Court  and  a  decision  from  that  body  before  the 
expiration  of  the  President's  term;  and,  in  the  second 
place,  Senators  who  might  have  voted  for  the  policy  of  a 
law  might  not  be  led  to  vote  for  the  President's  convic- 
tion on  a  purely  judicial  question  as  to  the  extent  of  its 
violation ;  and  because  no  single  offence  named  in  the 
indictment  could  be  clearly  made  out.  "Impeachment 
is  the  heaviest  piece  of  artillery  in  the  congressional  ar- 
senal, but  because  it  is  so  heavy  it  is  unfit  for  ordinary 
use."  ' 

6.  Congress  holds  the  power  of  the  purse,  and  by  its 
power  to  withhold  an  appropriation  necessary  to  carry 
out  an  executive  policy  it  may  bring  influence  Power  of  the 
and  pressure  to  bear  upon  the  President.  Con-  Purse- 
gress  may  check  a  scheme  which  the  President  favors,  by 
refusing  supplies  for  it.  The  President  cannot  carry  on 
military  operations  without  the  requisite  appropriations. 
If  he  were  to  purchase  territory,  Congress  could  withhold 
the  purchase  money.  But  while  the  President  is  within 
the  ordinary  and  constitutional  range  of  his  operations, 
Congress  will  not  attempt  to  control  him  and  force  him, 
by  withholding  supplies,  to  a  policy  which  he  opposes. 
To  do  that  would  be  to  stop  the  machinery  of  the  Gov- 
ernment, and  that  would  injure  Congress  and  the  country 
as  much  as  it  would  the  President.  Congress  would  be 
"cutting  off  its  nose  to  spite  its  face." 

7.  By  the  use  of  a  "rider"  to  an  appropriation  bill. 
A  "rider  "  is  an  unrelated  piece  of  legislation  attached  to 
another  legislative  measure  with  the  purpose  of  having  it 
ride  through  on  the  merits  of  the  measure  to  which  it 

1  Bryce,  vol.  i.,  p.  211. 


308  The  American  Republic 

is  attached.     "Riders"  are  usually  attached   to   appro- 
priation bills.     As  these  have  to  be  passed  it  is  thought 
JA     the  "rider  "  will  not  be  thrown  out.     The  prac- 

Riders  and  Ap-  A 

propnation  tice  of  tacking  to  appropriation  bills  irrele- 
BlUs'  vant  and  impertinent  measures  did  not  begin 

until  more  than  forty  years  after  the  adoption  of  the 
Constitution.  It  then  became  a  common  practice  and  all 
parties  resorted  to  it  when  in  power.  The  practice  gave 
rise  to  abuses,  conflicts,  and  waste  of  public  money. 
Public  opinion  became  set  against  it,  and  many  States 
adopted  constitutional  amendments  requiring  that  no  law 
shall  contain  more  than  one  subject,  and  that  subject 
shall  be  plainly  expressed  in  its  title. 

It  is  by  the  "rider  "  that  Congress  has  most  frequently 
attempted  to  coerce  the  President  by  the  use  of  its  money 
Historic  powers.      In  1855,  the  "Anti-Nebraska  men," 

"Riders."  or  the  early  Republicans,  in  passing  the  Army 
Appropriation  Bill  in  the  House,  attached  a  proviso,  or 
"rider,"  forbidding  the  President  to  use  the  army  to  en- 
force the  acts  of  the  pro-slavery  legislature  in  Kansas. 
President  Pierce  and  the  Democratic  Senate  denounced 
this  as  revolutionary.  The  Republicans  maintained  the 
right  of  the  House  to  guard  the  purse  and  to  impose  con- 
ditions. Mr.  Fessenden,  one  of  the  early  Republicans 
leaders,  said : 

"  In  the  English  Parliament  from  the  earliest  times  not  only- 
have  appropriation  and  revenue  bills  gone  together,  but  in 
cases  without  number  it  has  been  the  habit  of  that  Parliament 
to  check  the  power  of  the  Crown  by  imposing  conditions  to 
their  appropriations  of  money.  The  only  mode  in  which  our 
ancestors  of  Massachusetts  checked  the  powers  of  their  royal 
governors  was  by  granting  money  only  on  conditions.  The 
power  of  supply  and  the  power  of  annexing  conditions  to  sup- 
ply have  always  gone  together  in  parliamentary  history,  and 
their  joint  exercise  has  never  been  denounced  as  a  case  of 
revolution,  or  as  calling  for  revolution,  or  tending  to  produce 


The  House  of  Representatives        3°9 

revolution  in  any  shape  or  form  whatever.     It  is  a  power  es- 
sential to  the  preservation  of  our  liberties."  ' 

Senators  Wade  and  Seward  spoke  to  the  same  effect. 

In  1867,  Congress  used  this  weapon  against  President 
Johnson.  It  attached  to  an  Army  Appropriation  Bill  a 
clause  virtually  depriving  the  President  of  the  command 
of  the  army,  entrusting  this  to  General  Grant,  the  General 
highest  in  command.  President  Johnson  was  powerless, 
and  he  yielded  because  he  knew  that  the  bill  would  any- 
how be  passed  over  his  veto. 

In  1879,  tnis  issue  was  again  presented  in  Congress,  and 
this  time  executive  independence  of  Congress  was  estab- 
lished. In  the  controversy  between  President  Hayes  and 
the  House,  in  1879,  the  difference  was  as  to  the  repeal 
of  the  Federal  Election  Law  supervising  the  control  of 
elections  in  the  States.  The  House  wished  to  repeal  the 
law  empowering  the  President  to  use  the  troops  in  the 
South,  and  thus  to  leave  the  control  of  elections  solely 
in  the  hands  of  the  States.  The  House  attached  its  re- 
pealing act  to  the  Army  Appropriation  Bill.  The  Senate 
-rejected  this  combination  and  conference  committees  were 
appointed.  The  Senate  stood  ready  to  pass  the  appro- 
priation bills  at  any  time,  but  was  not  willing  to  accept 
as  riders  the  proposed  independent  legislation.  The 
Democratic  conferees  on  the  part  of  the  House  were  de- 
termined that  if  the  dominant  Republican  majority  in  the 
Senate  insisted  upon  the  maintenance  of  the  objection- 
able laws  and  refused  assent  to  their  repeal,  then  the 
House  would  refuse,  as  they  claimed  the  constitutional 
right  to  do,  to  make  appropriations  to  carry  on  the  Gov- 
ernment. Consequently  the  Congress  expired  and  the 
necessary  appropriations  were  not  made.  This  situation 
compelled  President  Hayes  to  call  Congress  into  extraor- 

1  Cited  in  The  Abolition  of  the  Presidency,  by  Henry  C.  Lockwood, 
chapter  on  "  The  Veto,"  p.  92. 


310  The  American  Republic 

dinary  session  in  the  spring  of  1879,  for  tnis  special  pur- 
pose,— to  vote  necessary  appropriations.  The  new  House 
sent  up  a  bill  with  the  self-same  rider.  This  time  the 
Senate,  owing  to  a  change  of  membership  in  that  body, 
passed  the  bill  with  the  rider.  In  urging  this  policy  of 
coercion  against  the  President  it  was  said  by  Mr.  Black- 
burn of  Kentucky,  on  behalf  of  the  House: 

"  It  will  then  be  for  the  President  to  determine  whether  he 
will  block  the  wheels  of  Government  and  refuse  to  accept 
necessary  appropriations  rather  than  allow  the  Representatives 
of  the  people  to  repeal  odious  laws  which  they  regard  as  sub- 
versive of  their  rights  and  privileges.  .  .  .  Whether  that 
course  is  right  or  wrong  it  will  be  adopted,  and  I  have  no 
doubt  adhered  to,  no  matter  what  happens  with  the  appropria- 
tions. .  .  .  We  have  the  right  to  vote  money;  let  us  an- 
nex conditions  to  it,  and  insist  upon  the  redress  of  grievances. 
.  .  The  right  of  the  people  to  withhold  supplies  is  as  old 
as  English  liberty.  Frequently  the  Commons,  feeling  that  the 
people  are  oppressed,  have  at  last  obtained  redress  by  refusing 
appropriations." 

This  seemed  like  an  attempt  to  force  the  Executive  to 
consent  to  legislation  under  the  threat  of  starving  the 
Government  to  death.  Notwithstanding  the  expressed 
determination  of  the  House,  President  Hayes  vetoed  the 
bills  and  Congress  was  obliged  to  pass  the  appropriation 
bills  without  the  riders.  In  his  veto  message  President 
Haves  said,  in  substance:  The  new  doctrine, 

President  and  J  .  .  .  f 

the  Legislative  if  maintained,  will  result  in  a  consolidation  of 
Riden  unchecked  and  despotic   power  in  the  House 

of  Representatives.  A  bare  majority  of  the  House  will 
become  the  Government.  It  strikes  at  the  independence 
of  the  departments.  The  House  is  not  entitled  to  say 
that  its  peculiar  function  is  to  represent  the  people ;  all 
branches  of  the  Government  are  representative  of  the 
people.     The  Constitution  aims  at  the  independence  of 


The  House  of  Representatives        3IT 

the  departments ;  this  independence  can  be  set  aside  only 
by  the  people  themselves.  The  doctrine  [of  the  rider] 
means  the  subjection  to  the  House  of  Representatives  of 
the  Senate  and  the  President  in  their  legislative  and  ad- 
ministrative functions. 

This  precedent  did  much  to  settle  the  conflicts  between 
the  Legislature  and  the  Executive  on  this  point,  and 
encourage  the  President  to  resist  coercion  by  the  rider. 
If  the  President  should  veto  an  appropriation  bill  because 
of  the  attachment  of  an  objectionable  rider,  and  Congress 
should  then  leave  the  Government  without  supplies,  the 
country  would  hold  Congress  responsible,  and  that  body 
would  be  condemned  by  public  opinion.  If  the  President 
were  allowed  to  veto  single  items  in  an  appro-  The  Veto  of  a 
priation  bill  without  rejecting  the  whole  bill  it  Section  of  a 
would  be  easy  to  meet  the  difficulty.  He 
could  then  unhorse  the  rider  by  his  veto  and  let  the  ap- 
propriation bill  proper  go  through.  In  this  way  the 
President  might  also  defeat  petty  jobs  smuggled  into  a 
bill  without  delaying  supplies,  and  thus  save  the  country 
much  money. 

The  principle  contended  for  by  the  Representatives  in 
these  conflicts,  wherein  they  were  seeking  to  impose  the 
will  of  Congress  on  the  Executive,  is  historic  and  of  long 
standing  in  parliamentary  government.  But  it  applies  in 
governments  unlike  our  own,  in  which  the  Executive  is 
subordinated  to  the  legislature.  In  England,  and  in  other 
constitutional  governments  in  Europe,  the  legislature 
controls  the  Executive  and  may  impose  conditions  to 
control  executive  conduct  at  any  time,  always  saving  to 
the  Executive  the  right  to  appeal  to  the  nation.  The 
Executive  can  exercise  no  authority  except  what  is  con- 
ferred upon  him  by  law,  that  is,  by  the  law  of  the  legis- 
lature. The  popular  struggles  of  the  past  have  taken 
the  form  of  an  effort  by  the  people  to  impose  their  will 
through  their  legislature   upon  their   executive   agents. 


312  The  American  Republic 

But  in  America  the  President  derives  his  authority,  not 
from  the  law  of  the  legislature,  but  from  the  law  of  the 
Constitution, — the  same  source  from  which  the  legislature 
derives  its  authority.  While  the  law  must  prevail  against 
the  mere  will  of  the  Executive,  it  must  be  the  law  of  the 
Constitution,  or  statute  law  in  harmony  therewith.  The 
Constitution  was  ordained,  and  all  laws  made  in  pursu- 
ance thereof  should  be  designed,  to  secure  Executive  in- 
dependence, and  might  many  times  defeat  the  will  of 
the  people  as  expressed  through  their  Representatives  in 
Congress.  This  may  not  secure  such  popular  representa- 
tive government  as  many  would  like  to  see,  but  it  is  the 
kind  of  government  our  fathers  established  in  our  Con- 
stitution. There  is  a  constant  tendency  in  the  legislature 
to  subordinate  the  Executive.  Some  think  that  the  ten- 
dency of  the  legislature  is  to  become  omnipotent  in  the 
state.1  If,  even  under  our  form  of  government,  a  large 
preponderant  majority  of  the  people  wish  to  have  it  so, 
they  can  accomplish  it.  When  the  two  Houses  agree  by 
a  two-thirds  vote,  the  Executive  is  powerless.  It  is  right 
that  such  a  preponderant  majority  of  the  people  should 
rule  without  the  hindrance  of  a  veto.  When  Congress 
possesses  this  sanction  from  the  people  the  Executive  is 
swallowed  up,  and  there  is  no  longer  a  balance  of  power 
among  the  departments.  The  Congress  can  bind  the 
President,  and  if  he  refuses  to  respect  the  bounds  as- 
signed to  him  by  Congress,  he  can  be  cast  out.  He  be- 
comes only  an  agent  limited  by  express  commands  with 
no  volition  or  discretion  left  him.2 

So  the  chief  source  of  executive  strength  is  in  his 
legislative  function,  the  veto.  If  he  be  shorn  of  that,  or 
if  its  strength  be  spent,  he  is  at  the  mercy  of  Congress. 
If  he  is  able  to  hold  his  own,  it  is  not,  as  Mr.  Bryce  says, 

1  Note  the  growth  of  legislative  power  in  appointments  and  treaties,  pp. 
165  et  seq.     See  note  in  Ford's  Federalist,  p.  409. 

2  See  pp.  100  et  seq.,  on  Executive  independence. 


The  House  of  Representatives        3T3 

"  by  virtue  of  any  properly  executive  function,  but  because  of 
the  share  of  the  legislative  function  which  he  has  received;  the 
Executive  holds  its  ground  not  because  of  its  separation  from 
the  legislature  but  because  of  its  participation  in  a  right  prop- 
erly belonging  to  the  legislature." 

Congressmen  are  exempt  from  arrest  during  their  at- 
tendance at  sessions  and  in  their  going  to  and  returning 
from  the  same, — except  when  treason,  felony,  Exemption 
and  breach  of  the  peace  are  charged  against  from  Arrest- 
them.  Jefferson  thus  explains  the  intention  in  this  ex- 
ception :  "  The  laws  shall  bind  equally  upon  all,  and  espe- 
cially those  who  make  them  shall  not  exempt  themselves 
from  their  operation."  The  sessions  of  Congress  must 
not  be  interfered  with  by  the  enforced  absence  of  any  of 
its  members,  except  on  a  charge  of  very  great  importance. 
If  members  were  allowed  to  be  arrested  and  could  be  com- 
pelled to  await  the  processes  of  law,  the  people  would  be 
unrepresented,  and  corrupt  politicians  would  trump  up 
absurd  and  empty  charges  against  a  representative  of 
another  party,  not  for  the  purpose  of  convicting  him  of 
-any  crime  or  misdemeanor,  but  merely  to  weaken  the 
opposing  party  in  Congress  by  causing  the  temporary  loss 
of  some  of  its  members.  The  Congressman  at  his  trial 
might  easily  vindicate  himself,  but  by  that  time  the  vote 
on  a  crucial  point  might  have  been  taken  and  his  district 
and  principles  be  unrepresented. 

The  patronage  of  Congress  is  not  extensive.  The 
members  all  have  clerks.  The  House  employees,  in  addi- 
tion to  the  clerks  of  the  members,  are  ap-  congress  and 
pointed,  supposedly,  by  the  four  officers  of  the  Patronage. 
House,— the  Clerk,  the  Doorkeeper,  the  Sergeant-at- 
Arms,  and  the  Postmaster.  But  these  officers  do  not 
really  appoint  the  House  assistants.1     These  places  are 

1  In  1901  there  were  357  employees  of  the  House,  in  addition  to  the 
members'  clerks,  with  a  salary  roll  of  $400,000. 


3 14  The  American  Republic 

distributed  to  members  for  their  influence  in  securing  the 
election  of  the  chief  officers  of  the  House,  and  many- 
places  are  created  for  the  henchmen  of  members.  This 
abuse  has  been  lately  exposed,  and  it  has  been  found 
that  a  large  number  of  men  are  on  the  pay-rolls  of  the 
House  who,  being  nominally  appointed  to  one  kind  of 
work,  are  found  to  be  doing  something  quite  different,  or 
to  be  at  home  on  a  long  vacation  engaged  in  the  political 
work  of  the  members  appointing  them.  Men  who  have 
a  "pull"  with  some  State  delegation  receive  pay  for 
Au        ,        work  which  other  men    perform.1     Extensive 

Abuses  of  * 

Patronage  by  abuses  in  patronage  by  members  rewarding 
their  political  workers  have  led  to  the  sugges- 
tion that  Congressmen  should  be  debarred  by  law  from 
recommending  the  appointment  of  persons  not  only  to 
positions  under  the  control  of  the  executive  departments 
but  to  all  positions  under  the  National  Government. 

The  "Third  House"  is  the  Lobby.  Literally,  the 
lobby  consists  of  the  halls  and  anterooms  that  surround 
The  "Third  the  legislative  chambers.  It  has  come  to  mean 
House."  thg  men  ancj  women — there  are  many  female 
lobbyists — who  hang  about  the  legislative  chambers  and 
who  make  it  their  business  to  influence  members  in  favor 
of,  or  in  opposition  to,  certain  measures.  These  are  the 
professional  lobbyists,  and  they  are  always  paid  for  their 
services  by  the  persons  interested  in  the  proposed  legisla- 
tion. They  may  do  honorable  work  for  their  clients,  but 
frequently  their  work  is  that  of  the  corruptionist.     On  the 

'A  late  report  to  the  House  on  this  subject  says  :  "  Winthrop  C.  Jones 
is  carried  on  the  roll  as  a  locksmith  at  a  salary  of  $1440,  while  in  point  of 
fact  his  duties  as  locksmith  are  performed  by  Daniel  P.  Hickling.  who  is 
on  the  doorkeeper's  roll  as  a  session  folder  at  $75  per  month.  Thus  the 
position  of  locksmith,  the  duties  of  which  require  only  a  payment  of  $75 
per  month  during  the  session,  pays  to  the  man  who  performs  none  of  its 
duties  $1440  per  annum."  For  account  of  other  specific  abuses  in  this 
direction  see  The  Outlook,  March  30,  1901,  pp.  701,  702,  and  Mr.  Moody's 
report  to  the  House,  March,  1901. 


The  House  of  Representatives        315 

other  hand,  many  men  advocate  before  committees  meas- 
ures in  which  they  are  especially  interested,  and  such 
lobbying  may  be  honorable  and  useful  public  service. 
When  bills  are  before  Congress  whose  passage  would 
greatly  affect  private  interests  it  is  right  that  the  persons 
whose  interests  are  affected  should  be  allowed  to  present 
their  views.  Lobbying  is  a  valuable  process  for  bringing 
out  the  facts  and  the  arguments  in  a  cause.  If  the  de- 
cision can  be  left  uninfluenced  by  other  than  the  public 
interests  no  harm  will  be  done.  But  men  with  private 
interests  at  stake  are  more  insistent  and  unscrupulous 
than  men  who  seek  only  to  guard  the  public  interest,  and 
"lobbying  "  has  come,  therefore,  to  be  regarded  generally 
in  an  unfavorable  sense,  and  a  "professional  lobbyist"  is 
looked  upon  as  one  who  is  seeking,  by  hook  or  by  crook, 
to  promote  some  corporate  or  private  end  at  the  expense 
of  the  public  welfare.  The  complex  processes  of  legisla- 
tion have  brought  it  about  that  it  is  almost  impossible  for 
a  bill  to  get  through  Congress  merely  upon  its  merits,  and 
the  advocates  of  good  claims  and  worthy  public  measures 
must,  perforce,  employ  the  lobbyist  to  manage  their 
measures.1 

REFERENCES  ON  THE  HOUSE  OF  REPRESENTATIVES 

1.  Bryce,  American  Commonwealth,  vol.  i.,  chapters  xiii.-xxi. 

2.  Wilson,  Woodrow,  Congressional  Government. 

3.  FOLLETT,  M.  P.,   The  Speaker. 

4.  McConachie,  Lauros  G.,  The  Committee  System. 

5.  Ford,  Henry  J.,  The  Rise  and  Growth  of  American  Politics,  chap.  xx. 

6.  Hinsdale,  Civil  Govermnent. 

7.  The  Congressional  Directory  and  the  Congressional  Record. 

8.  "The  United  States  Congress,"  J.  C.   Ridpath,  Arena,  vol.   xvii., 

p.  969. 

1  See  Bryce,  vol.  i.,  p.  677  ;  Lalor's  Cyclopedia  of  Political  Science,  article 
on  "  Lobby  "  ;  "  The  Third  House  :  Is  Lobbying  a  Necessity?"  Indepen- 
dent, vol.  1.,  p.  181  ;  "Cause  and  Cure  of  the  Lobby,"  A.  G.  Sedgwick, 
Atlantic  Monthly,  vol.  xli.,  p.  512  ;  "  The  Strikers  of  the  Lobby,"  J.  Par- 
ton,  Atlantic  Monthly,  vol.  xxiv.,  p.  216  ;  "  Lobbying  in  Congress,"  At- 
lantic Monthly,  vol.  xxiv.,  p.  361,  J.  Parton. 


J 


1 6  The  American  Republic 


9.   "  Congress  and  Its  Critics,"  North  American  Review,  vol.  clxii.,  p.  355. 

10.  Filibustering  :    "  How  to  Deal  with  a  Filibustering  Minority,"  J.   B. 

McMASTER,  Forum,  vol.  xvi.,  p.  471. 

11.  "The  Speakership,   Edwin   Maxey,    in   Some   Questions   of  Larger 

Politics. 

12.  Procedure   in    Congress:    "How   a   Bill   Becomes   a   Law,"   G.    H. 

Walker,  Chautauquan,  vol.  xiv.,  p.  569. 

13.  "  The  Quorum  in  Congress,"  The  Nation,  vol.  lviii.,  pp.  148,  306. 

14.  "  Reconquest   of   the   House   of  Representatives,"   J.    C.    Ridpath, 

Arena,  vol.  xx.,  p.  118. 

15.  "Obstruction  as  Affected   by  the  New  Rules  in  Congress,"   H.   C. 

Lodge,  Nineteenth  Century,  vol.  xxix.,  p.  423. 

16.  "Congress  or  Parliament,"  T.  P.  Gill,   Contemporary  Review,   vol. 

liii.,  p.  758. 

17.  "Congress:    Its   Procedure   Compared  with  that  of  Parliament,"  J. 

Chamberlain,  Nineteenth  Century,  vol.  xxviii.,  p.  861. 

18.  "  Misrepresentation  in  Congress,"  L.  S.  Bryce,  North  American  Re- 

view, vol.  cxlviii.,  p.  184. 

19.  "  The  Autocrat  of  Congress,"  H.  L.  West,  Forum,  vol.  xxiii.,  p.  343. 

20.  "A  Century  of  Congress,"  J.  A.  Garfield,  Atlantic  Monthly,  vol. 

xl.,  p.  49. 

21.  "  Conduct  of  Business  in  Congress,"  North  American  Review,   vol. 

cxxviii.,  p.  113. 

22.  On  Appropriations:   "How  Congress  Votes  Money,"   C.  F.   Crisp, 

North  American  Review,  vol.  clxii.,  p.  14;  "Appropriations 
and  Misappropriations,"  North  American  Review,  vol.  cxxviii.  ; 
"  Spending  of  Public  Money,"  T.  B.  Reed,  North  American  Review, 
vol.  liv.  ;  "  Congress  and  its  Appropriations,"  The  Nation,  vol.  lxiv., 

p.  196. 

23.  "  The    House   of   Representatives    and    the    House   of    Commons,' 

Hilary  A.  Herbert,  North  American  Review,  vol.  clviii. 

24.  Johnston,  Alexander,  article  on  "Riders"  in  Lalor's  Cyclopedia  of 

Political  Science. 

25.  "  How  Our  Laws  are  Made,"  R.  Ogden,  Nation,  vol.  lvi.,  p.  191. 

26.  "  How  to  Purify  Congress,"  M.  V.  Allen,  North  American  Review, 

vol.  clix.,  p.  159. 

27.  "Is  Congress  a  Sovereign  Legislature  Touching  Our  External  Re- 

lations?" Senators  G.  G.  Vest  and  G.  N.  Dolph,  North  American 
Review,  vol.  clvii.,  p.  234. 

28.  "  The  Power  of  the  Speaker  of  the  House  of  Representatives,"  J.  B. 

Walker,  Cosmopolitan,  vol.  xxiv.,  p.  630. 


CHAPTER   VI 

THE   JUDICIARY 

THE  Judiciary  is  a  third  department  of  Government 
under  the  Constitution. 
The  Judicial  power  of  the  United  States  is  vested  in 
one  Supreme  Court  and  in  such  inferior  courts  as  Con- 
gress may  establish  from  time  to  time.     It  was    The  Judicial 
difficult  in  the  Convention  of  1787  to  secure  the  Power: 

Where  Vested' 

power  to  establish  inferior  courts,  against  the 
objections  of  the  small  State  party.  It  was  thought  that 
the  national  courts,  being  merely  appellate  in  their  jurisdic- 
tion, would  have  so  little  to  do  that  one  Supreme  Court 
would  be  sufficient.  The  growth  of  national  interests  and 
of  national  law  was  not  foreseen. 

The  Judges,  both  of  the  Supreme  and  inferior  courts, 
hold  their  offices  during  good  behavior.  They  receive 
for  their  services  a  compensation  which  shall  Tenure  and 
not  be  diminished  during  their  continuance  in  compensation. 
office.1 

Under  the  old  Confederation  there  was  no  National 
Judiciary.  Congress  was  made  a  court  of  appeal  in  dis- 
putes between  two  or  more  States  concern-  The  judiciary 
ing  boundaries,  jurisdiction,  and  other  causes.        under  the 

.    ,  ,  ,.   ,  ,         .«        ,    .    ,       r  Confederation. 

Congress  might  establish  courts  for  the  trial  ot 
piracies  and  felonies  on  the  high  seas,  and  courts  for  re- 
viewing  cases   of   capture   and  other  admiralty  matters. 
The  Congress  itself  occasionally  acted  as  a  court  in  inter- 

1  Constitution,  Art.  III.,  Sec.  1. 
317 


3 iS  The  American  Republic 

State  disputes  and  erected  certain  admiralty  courts  which 
passed  on  maritime  affairs.  But  neither  Congress  nor 
these  courts  had  any  power  or  process  of  executing  their 
judgments  when  they  were  questioned.  The  Articles  of 
Confederation  were  construed  by  the  State  courts.  When 
national  law  began  to  operate  upon  individuals  it  became 
necessary  to  have  a  National  Judiciary, 
classes  of  There  are  three  classes  of  Federal  Courts : 

Federal  courts.     I    The  Supreme  Court. 

2.  Circuit  Courts. 

3.  District  Courts. 

The  Supreme  Court  was  required  by  the  Constitution 
itself;  the  erection  of  the  other  courts  was  left  to  the  dis- 
cretion of  Congress. 

In  the  Judiciary  Act  of  September  24,  1789,  Congress 
carried  into  effect  the  provisions  of  the  Constitution  as  to 
judiciary  Act  the  Judiciary.  This  act  in  its  essential  features 
of  1789.  stiii  stands  as  the  statute  determining  the  con- 

stitution of  the  Federal  court.  In  the  history  of  national 
legislation  no  Act  can  be  counted  of  greater  importance, 
so  far  as  legislation  has  permanently  affected  any  of  our 
institutions.  Its  abiding  influence  and  importance  are 
enough  to  immortalize  its  author,  Oliver  Ellsworth,  of 
Connecticut. 

Originally,  by  the  Act  of  1789,  the  Supreme  Court  num- 
Sizeof  bered  six.     There  are  now  nine,  a  Chief  Jus- 

Supreme  tice  with  a  salary  of  $10,500,  and  eight  associate 
Justices  with  salaries  of  $10,000  each. 

The  Justices  are  nominated' by  the  President  and  con- 
firmed by  the  Senate.  They  are  removable  only  by  im- 
„      T    .       peachment.      English   Justices   are  removable 

How  Justices    r  °  J 

are  Remov-  by  the  Crown  on  an  address,  or  petition,  from 
both  Houses  of  Parliament.  The  securer 
tenure  in  America  is  to  ensure  the  independence  of 
the  Judiciary  and  to  prevent  their  subserviency  either 
to  the  executive  or  to  the  legislative  department.     The 


The  Judiciary  3J9 

separation  and  independence  of  the  three  co-ordinate 
departments  of  our  Government  are  again  guarded  at 
this   point. 

The  regular  sessions  of  the  Supreme  Court  are  from 
October  to  July  in  each  year.  The  presence  of  six  judges 
is  required  to  pronounce  a  decision.  This  se-  Sessions  of  the 
cures  a  thorough  consideration  of  every  case,  Supreme 
though  it  prevents  the  expediting  of  the  busi- 
ness before  the  Court.  Every  case  is  argued  before  the 
full  Court;  the  judgment  of  the  majority  of  the  Court  is 
then  expressed,  and  the  written  judgment  is  then  pre- 
pared by  one  of  the  Justices. 

Congress  has  established  nine  judicial  circuits,  or  nine 
Circuit  Courts.  Each  of  these  has  two  circuit  judges 
with  a  salary  of  $6000,  and  one  Justice  of  the  Supreme 
Court  is  assigned  to  each  of  these  circuits.  The  circuit 
court  may  be  held  either  by  a  circuit  judge  alone,  or  the 
Supreme  Court  Justice  for  that  circuit  alone,         . 

r  •>  Circuit  Courts. 

or  by  both  together,  or  by  either  sitting  with 
the  district  judge,  in  that  district,  or  by  the  district  judge 
alone.  In  1891,  an  act  established  Circuit  Courts  of  Ap- 
peals, to  which  cases  may  be  taken  from  the  circuit  and 
district  courts, — a  further  appeal  lying  to  the  Supreme 
Court  in  certain  classes  of  cases.  This  act  was  for  the 
purpose  of  relieving  the  Supreme  Court,  which  was  nearly 
three  years  behind  in  its  cases. 

The  District  Courts '  are  the  third  form  of  the  Federal 
courts.     They  are  at  present  fifty-five  in  num-  District 

ber.     Their  judges  receive  a  salary  of  $5000.  Courts- 

They  are  appointed  by  the  President  by  and  with  the  ad- 
vice and  consent  of  the  Senate. 

Congress  has  erected  a  Court  of  Claims  for  the  special 
purpose  of    trying    claims  of    private    persons  Court  of 

against  the  United   States.     Appeals  may  be  Claims- 

taken  to  the  Supreme  Court. 

'See  Bryce,  p.  231,  Statesman  s   Year  Book,  1898. 


320  The  American  Republic 

What  kind  of  cases  come  under  the  jurisdiction  of  the 
Federal  courts? 

,i.   "Cases  in  law  and  equity   arising  under 

Jurisdiction  of  ~i        j  a 

Federal  the  Constitution,  the  laws  of  the  United  States, 

and  treaties  made  under  their  authority."  ' 

In  any  case  to  which  a  Federal  statute  applies  suit  may 

be  brought  in  a  Federal  court.     Any  defendant  who  rests 

„        „         his  defence  on  a  Federal  law  may  have  the  case 

How  a  Case  J 

may  be  transferred  to  the  Federal  court  though  it  may 

f^omlTtate      haVe    aHsen    in    a    State    COUrt'       Tlle    Judkiary 

to  a  Federal  Act  of  1 789  lays  down  the  rules  for  removing 
a  case  from  the  State  to  the  Federal  court.  If 
the  State  court  has  decided  against  the  validity  of  a  treaty, 
or  law,  or  authority  exercised  under  the  United  States; 
or,  if  the  State  court  has  decided  in  favor  of  the  validity 
of  a  State  law  or  exercise  of  authority,  which  is  questioned 
as  being  contrary  to  the  Constitution,  treaties,  or  laws 
of  the  United  States;  or  where  the  State  court  decision 
is  against  any  title,  right,  privilege,  or  immunity  claimed 
by  either  party  under  the  United  States  Constitution 
and  laws, — in  such  cases  the  action  may  be  transferred 
from  the  State  to  the  Federal  courts. 

The  principle  of  the  rule  is  obvious :  State  construction 
of  a  Federal  law  unfavorable  to  Federal  authority  may  be 
reviewed  by  Federal  construction.  A  State  construction 
favorable  to  Federal  authority  needs  no  review,  the  Fed- 
eral power  being  already  sufficiently  vindicated.2  The 
Federal  authority  is  the  final  judge  of  the  extent  of  its 
powers,  and  State  decisions  and  actions  cannot  interrupt 
the  exercise  of  these  powers.  This  principle  applies  also 
to  executive  acts  under  Federal  authority.  Within  its 
legal  sphere  the  United  States  law  operates  of  its  own 
right,  and  it  is  supreme  and  sufficient ;  no  State  authority 
can  resist  it.  For  illustration :  A  person  arrested  by  a 
Federal  officer  may  not  be  released  by  a  State  court  on 

1  Constitution,  Art.  III.,  Sec.  2.  2  Bryce. 


The  Judiciary  321 

a  writ  of  habeas  corpus.  This  was  tested  in  Wisconsin 
in  1855.  A  Mr.  Booth  violated  the  Fugitive  Slave  Law 
of  1850,  by  aiding  a  fugitive  slave  to  escape,  state  Action 
He  was  arrested  and  held  in  custody  by  Able-    may  Not  In~ 

terrupt  the 

man,  the  United  States  marshal.  Booth  ap-  operation  of 
plied  to  the  State  court  for  a  writ  of  habeas  FederalLaw- 
corpus,  and  on  this  writ  the  highest  State  court  of  Wis- 
consin ordered  his  release.  Chief  Justice  Taney  in  re- 
viewing this  case  for  the  United  States  Supreme  Court, 
said : 

"  The  powers  of  the  general  Government  and  of  the  State, 
although  both  exist  and  are  exercised  within  the  same  territorial 
limits,  are  yet  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  independent  of  each  other, , within  their  respective 
spheres.  And  the  sphere  of  action  appropriated  to  the  United 
States  is  as  far  beyond  the  reach  of  the  judicial  process  issued 
by  a  State  Court  as  if  the  line  of  division  was  traced  by  land- 
marks and  monuments  visible  to  the  eye."  ' 

Booth  was  retained  in  custody  by  force  of  United  States 
law,  and  the  right  of  a  State,  or  a  State  officer,  to  release 
him  was  denied. 

2.  ' '  Cases  affecting  ambassadors,  other  public  ministers, 
and  consuls."  2 

These  persons  have  an  international  character,  and  it 
would  not  be  proper  to  have  their  cases  dealt  with  by 
State  authority. 

3.  "Cases  of  admiralty  and  maritime  jurisdiction,"  i.  e., 
prize  cases,  and  cases  relating  to  navigation. 

4.  "Controversies  to  which  the  United  States  shall  be 
a  party." 

The  United  States  should  not  be  compelled  to  sue  or 
be  sued  in  a  State  Court.  A  money  claim  against  the 
Federal  Government  will  come  up  in  the  Court  of  Claims. 

1  Booth  vs.  Ableman,  21  Howard,  516.     See  also  Thayer's  Cases. 

2  Constitution. 


322  The  American  Republic 

5.   Controversies — 

(a)  Between  two  or  more  States ; 

(b)  Between  a  State  and  citizens  of  another  State ; 

(c)  Between  citizens  of  different  States ; 

id)  Between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States. 

(r)  Between  a  State,  or  its  citizens,  and  foreign  States, 
citizens,  or  subjects. 

It  was  supposed  that  in  all  these  cases  a  State  court 
was  likely  to  be  partial.  A  claim  of  a  non-resident,  and 
especially  of  an  Englishman  or  foreigner,  against  a  citizen 
of  one  of  the  States  was  likely  to  be  prejudged  by  local 
courts  and  juries  in  1787.  English  creditors  could  not 
secure  payment  of  just  claims  in  the  State  courts  from 
1783  to  1789. 

One  of  these  classes  of  controversies  (b)  has  since  been 
withdrawn  from  Federal  jurisdiction  by  the  Eleventh 
The  Eleventh  Amendment.  It  violated  the  sense  of  dignity, 
Amendment,  independence,  and  sovereignty  of  a  State  to 
allow  it  to  be  dragged  into  court  by  a  private  plaintiff. 
It  was  supposed  and  so  announced  by  Hamilton  and 
Marshall  that  the  clause  giving  this  jurisdiction  to  the 
Federal  court  would  not  be  construed  in  such  a  way  as 
to  give  the  right  to  an  individual  to  sue  a  sovereign  State 
without  its  consent.  But  it  was  shown  in  the  celebrated 
chishoimvs.  case  of  Chisholm  vs.  Georgia,  in  1793,  that  this 
Georgia.  construction  which  Hamilton  mentioned  as  ex- 
pected, could  not  be  had  by  mere  implication.  Federal 
authority  might,  by  implied  powers,  become  greater  than 
was  expected,  but  not  less,  and  if  the  Constitution  was 
to  be  construed  as  Hamilton  and  Marshall  suggested,  it 
must  be  as  the  result  of  expressed  words.  Chisholm  sued 
Georgia  in  United  States  Courts  for  the  recovery  of  a 
claim.  Georgia  refused  to  appear,  and  the  Supreme 
Court,  Chief  Justice  Jay  rendering  the  decision,  pro- 
ceeded to  construe  the  Constitution  in  the  way  precisely 


The  Judiciary  323 

that  Hamilton  said  it  would  not  be  construed,1  and  the 
Court  gave  judgment  against  Georgia  by  default.  This 
decision  alarmed  the  States,  and  the  Eleventh  Amend- 
ment passed  Congress  and  was  duly  accepted  by  the 
States.     This  declares: 

"  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  State." 

Under  the  shelter  of  this  amendment  several  States  have 
been  able  with  impunity  to  repudiate  their  debts.  The 
National  Government  cannot  require  the  States  to  pay 
their  debts.  This  condition  might  involve  us  in  difficul- 
ties with  foreign  powers,  if  State  debts  held  by  citizens 
of  foreign  countries  were  repudiated.  Diplomacy  could 
not  reach  the  State,  yet  foreign  citizens  would  have  a 
grievance.  The  National  Government  would  probably 
pay  to  avoid  a  foreign  complication,  as  it  has  repeatedly 
paid  indemnities  for  injuries  done  to  foreigners  within 
the  States.  Public  sentiment  would  have  to  be  relied 
upon  to  bring  the  State  to  fulfil  its  obligations. 

The  Supreme  Court  has  original  jurisdiction  in  cases 
affecting  ambassadors  and  wherever  a  State  is  a  party. 
In  other  cases  its  jurisdiction  is  appellate,— that  is,  cases 
are  brought  up  to  it  on  appeal  from  the  lower  courts,  Fed- 
eral or  State.  A  Federal  act  cannot  impose  functions 
and  duties  upon  a  State  court ;  the  States  may  refuse  to 
accept  and  discharge  these  duties." 

The  jurisdiction  of  the  Federal  Courts  is  statutory. 
That  is,  these  courts  derive  their  powers  from  the  specific 
grants   of  the   Constitution   and    the    statutes  _  ,     .  _ 

0  Federal  Court 

made  in  accordance  with  the  Constitution,  jurisdiction  is 
The  United  States  courts  have  no  common-law  statutory- 
jurisdiction.     Their  powers  are  to  be  found  in  the  written 

1  See  Federalist,  No.  81.  •  See  Prigg  vs.  Pennsylvania. 


324  The  American  Republic 

law,  not  in  general  principles  and  usages  of  law.  A 
Federal  law  applicable  to  any  case  prevails,  in  that  case, 
against  any  State  law ;  and  whether  a  Federal  law  is  ap- 
plicable every  suitor  is  entitled  to  have  a  Federal  Court 
determine.  By  this  principle  clashes  of  authority  between 
State  and  Federal  courts  are  avoided  and  the  two  juris- 
dictions work  together  in  harmony  over  the  same  people 
at  the  same  time.     In  administering  a  State  law 

Federal  Courts  .  .         _.,     .         .  .  .    .. 

Follow  state     m  any  case  the  rederal  courts  always  follow 
Decisions  on    the  decisions  of  the  State  courts.     In  the  Dred 

State  Law.  ,  .  .        .        _ 

Scott  case,  1857,  there  were  those  in  the  Court 
disposed  to  regard  the  issue  raised  by  Dred  as  purely  a 
Missouri  question,  to  be  decided  entirely  according  to 
Missouri  law.  This  view  held  that  United  States  law  was 
not  applicable  to  the  case ;  the  case  did  not  come  under 
United  States  jurisdiction.  This  view  was  held  by  the 
majority  of  the  Court  in  a  part  of  its  decision,  and  if  it 
had  not  gone  beyond  this  the  Court  would  have  been  on 
safer  ground.  It  would  have  remanded  Dred  to  slavery, 
because  the  highest  Missouri  court  had  so  ordered  in  his 
case.  The  United  States  Court  regards  the  State  de- 
cision as  settling  any  question  to  which  only  State  law 
applies.  The  Supreme  Court  has  overruled  its  own  de- 
cisions on  points  of  State  law  in  order  to  bring  itself  into 
harmony  with  the  view  of  the  highest  State  court.  State 
courts  always  follow  Federal  decisions  upon  questions  of 
Federal  law. 

The  Federal  Marshal  is  the  sheriff  of  the  United  States 
Court.  It  is  the  Marshal's  duty  to  execute  the  writs, 
United  states  judgments,  and  orders  of  the  court.  He  may 
Marshal.  ca\\  a  p0sse  of  citizens  to  his  aid ;  if  that  is  not 
sufficient  he  may  apply  to  the  Government  at  Washington 
for  Federal  troops.  If  the  President  refuses  the  necessary 
force  the  Court  is  powerless  to  execute  its  decrees,  as  in 
the  case  of  Marshall's  decision  against  Georgia,  under 
the  presidency  of  Jackson.     The  Marshal  is  the  executive 


The  Judiciary  325 

arm  of  the  Court,  and  he  is  expected  to  protect  the  Court 
from  disorder  and  assault.  A  Marshal  appointed  to  de- 
fend Justice  Field  from  a  threatened  assault,  shot  and 
killed  the  assailant  of  the  Justice  and  was  held  not  to  be 
answerable  to  California  law,  the  State  in  which  the  justi- 
fiable defence  was  made.1 

The  United  States  District  Attorney  is  the   Unit 
Federal  prosecutor.     He  institutes  proceedings  District 

against  persons  violating  Federal  law. 

The  District  Attorney  and  the  Marshal  are  both  un- 
der the  direction  of  the  Attorney-General  of  the  United 
States,  the  head  of  the  Department  of  Justice.  Through 
these  officers  Federal  authority  covers  the  whole  territory 
of  the  Union. 

From  a  political  point  of  view  the  most  important  func- 
tion of  the  Judiciary  is  its  power  of  declaring 

,         n-.i   -  1  •  Power  to 

an  act  unconstitutional.  1  his  power  applies  Declare  a  Law 
not  only  to  the  acts  of  Congress  but   to  the     Unconstitu- 

r  r       n  ,  •    1  A  tional- 

acts  of  any  of  the  State  legislatures.     An  act 

declared  unconstitutional  by  the  Supreme  Court  is  as  if  it 

had  never  been. 

"  Rights  cannot  be  built  up  under  it;  contracts  which  de- 
pend upon  it  for  consideration  are  void;  it  constitutes  a  pro- 
tection to  no  one  who  has  acted  under  it,  and  no  one  can  be 
punished  for  having  refused  obedience  to  it  before  the  decision 
was  made.  It  is  to  be  regarded  as  never  having,  at  any  time, 
been  possessed  of  any  legal  force."  2 

It  is  a  power  not  conferred  expressly  by  the  Consti- 
tution, and  when  it  was  first  exercised  by  the  national 
courts,  and  acts  of  Congress  and  of  the  State  legislatures 
were  set  aside  as  null  and  void  and  of  no  force,  this  exer- 
cise of  authority  created  considerable  alarm.  Jefferson 
and  the  States'   Rights  party  were  afraid  the  Supreme 

1  See  the  case  of  Neagle. 

8  Cooley,  Constitutional  Limitations,  p.  222,  cited  by  Hinsdale. 


326  The  American  Republic 

Court,  with  this  right  of  overruling  Congress  and  the 
State  legislatures,  would  make  itself  such  a  powerful  arm 
of  the  National  Government  that  the  people  would  lose 
control  over  their  laws.  It  was  thought  to  be  dangerous  to 
have  their  legislative  will  thus  thwarted  and  interfered  with. 
Therefore  Jefferson  and  his  party  urged  more  effective 
popular  control  of  the  courts ;  that  the  judges'  office  should 
be  elective  and  for  a  briefer  tenure ;  that  they  should  not 
be  independent  of,  or  that  at  any  rate  they  should 
not  be  superior  to,  the  political  arm  of  the  Government. 
Jefferson  and  his  followers  were  not  willing  that  the  Su- 
preme Court  should  exercise  this  power  against  State  laws, 
as  this  would  be  like  a  national  agency  vetoing  the  laws  of 
the  States.  In  the  Convention  that  framed  the  Constitu- 
tion in  1787  it  was  proposed  that  a  veto  on  the  acts  of  the 
State  legislatures  be  conferred  upon  Congress;  that  any 
State  law  that  Congress  deemed  inexpedient  or  unwise 
might  be  vetoed.  This  was  almost  unanimously  rejected. 
Later  the  proposal  was  modified  to  allow  Congress  to 
veto  only  unconstitutional  laws  of  the  States.  There 
were  serious  objections  to  this  also.  To  veto  the  law 
of  a  State,  though  the  law  might  violate  the  Federal 
Constitution,  would  seem  like  a  political  act ;  it  would 
have  offended  State  loyalty ;  it  would  have  been  difficult 
to  exercise,  since  Congress  would  not  be  constantly  in 
session,  and  it  would  certainly  have  provoked  collisions 
between  State  and  Federal  authority.  Such  an  emana- 
tion of  Federal  authority,  with  power  to  in- 
tionai  Negative  terfere  with  the  liberty  and  conduct  of  the  State, 
on  state  Laws  would  have  been  a  constant  irritation.  This  veto 

Inadvertently  1         1        •     1  /- 

Conferred  in    power  was   consequently  denied  to  Congress, 
the  con-         The  p0wer  having  been  so  denied,  is  it  to  be 

stitution?  r  .      ,  .  , 

supposed  that  it  had  been  inadvertently  con- 
ferred upon  the  Supreme  Court?  When  the  early  decisions 
and  interpretations  of  the  Supreme  Court  brought  this 
power  unexpectedly  into  being,  Jefferson  and  the  adher- 


The  Judiciary  327 

ents  of  States'  rights  denied  this  function  to  the  Court. 
All  parties  admitted  that  unconstitutional  laws  did  not  bind 
the  people.  But  Jefferson  and  the  Virginia  school  thought 
it  "a  very  dangerous  doctrine  to  consider  the  judges  as 
the  ultimate  arbiters  of  all  constitutional  questions ;  that 
would  place  us  under  the  despotism  of  an  oligarchy." 
They  were  unwilling  that  a  national  agency 
should  be  allowed  to  define  the  limits  of  na-  tionai  Author- 
tional  authority,  and  when  the  vital  question  ^6  uSterf 
was  raised  as  to  whose  prerogative  it  should  be  National 
to  decide  upon  the  constitutionality  of  laws, 
Jefferson  asserted,  unfortunately,  that  "as  in  all  other 
cases  of  compact  among  parties  having  no  common  judge, 
each  party  (presumably  each  State)  has  an  The  vir 
equal  right  to  judge  for  itself  as  well  of  infrac- and  Kentucky 
tions  as  of  the  mode  and  measure  of  redress."  !  esoutions- 
This  was  a  political  doctrine  set  forth  by  Jefferson  to  meet 
a  political  issue, — the  issue  between  State  and  national 
power.  As  a  political  theory  it  has  since  been  abandoned, 
because  an  extreme  application  was  logically  made  of  it 
that  was  calculated  to  undermine  and  destroy  the  Union. 
But  it  is  also  abandoned  because  of  the  fact  that  the  Su- 
preme Court  has  attained  to  the  position  of  an  accepted 
and  impartial  umpire  to  settle  the  constitutional  cause 
then  in  dispute, — the  limits  of  power  between  State  and 
Nation.  But  this  power  of  the  Court  to  declare  laws 
unconstitutional  was  then  new  and  startling,  although  it 
is  now  exercised  without  offence  to  any  party  in  the 
country, — a  tribute  to  the  people's  confidence  in  the 
Supreme  Court.  In  disputes  between  the  States  and 
the  Central  Government,  Jefferson  recognized  The"um- 
that  there  must  be  somewhere  an  ultimate  ar-  mate  Arbiter" 

...  -  in  Disputes 

biter,  but  the  final  judgment  was  not  to  be  with  between  state 
either  party  to  the  dispute.  "The  ultimate  ar-  and  Nation- 
biter  is  the   people    of   the   Union,  assembled   by  their 

1  Kentucky  Resolutions. 


328  The  American  Republic 

deputies  in  convention  at  the  call  of  Congress  or  of  two 
thirds  of  the  States.  Let  them  decide  to  which  organ 
they  mean  to  give  an  authority  claimed  by  two  of  their 
organs."1  But  our  usage  has  referred  the  arbitrament 
of  such  disputes  on  constitutional  questions  to  the  Supreme 
Court,  "a  body  which  is  to  be  deemed  not  so  much  a 
third  authority  in  the  Government  as  the  living  voice  of 
the  Constitution,  the  unfolder  of  the  mind  of  the  people 
whose  will  stands  expressed  in  that  supreme  instrument. ' ' a 
The  power  in  the  courts  to  declare  a  law  unconstitu- 
tional is  distinctly  American.  It  excites  special  attention 
and  comment  from  European  students  of  our 

In  Allowing 

such  supre-     politics,  and  it  is  a  matter  of  some  amazement 
macytothe     tQ    ^^   tkat   Americans   permit    it.     Under 

Judiciary  x 

America  is       no  other  constitutional  government  does  this 
unique.  power  rest  with  the  Judiciary.      In  England,  as 

we  have  seen,  Parliament  is  supreme.3  There  all  statutes 
are  of  equal  authority;  all  were  made  by  the  legislature 
and  all  can  be  changed  by  the  legislature.  No  court 
would  presume  to  set  aside  an  act  of  Parliament.  An 
English  political  leader  may  declaim  against  a  proposed 
act  of  Parliament  as  "unconstitutional  "  ;  but  by  this  he 
merely  means  that  the  act  is  contrary  to  precedent  or 
usage ;  or  he  may  mean  that  it  is  contrary  to  certain  his- 
toric measures  which  in  England  are  called  con- 
tionai 1  U"  stitutional  statutes,  such  as  the  Magna  Charta 
statutes  "in  (1215),  the  Petition  of  Right  (1628),  the  Bill  of 
Rights  (1688),  the  Act  of  Settlement  (1701), 
the  Acts  of  Union  (1708,  1800),  the  Reform  Bill  (1832) — 
important,  long-standing  measures  denning  the  character 
of  the  State  and  according  to  which  all  parties  are  ex- 
pected to  conduct  the  Government.  But  even  these 
great  measures  may  be  repealed  by  act   of  Parliament. 

1  "  Jefferson's  Opinions  of  Marshall  and  his  Court,"  American  Law  Re- 
view, January-February,  1901,  and  Jeffersonian  Cyclopedia. 

5  Bryce,  vol.  i.,  p.  357.  3See  pp.  95  et  seq. 


The  Judiciary  329 

Whatever  law  Parliament  passes,  the  courts  will  accept 
and  apply,  and  if  it  conflicts  with  any  preceding  act,  no 
matter  of  what  importance,  the  latest  act  will  stand  as 
law.  If  English  judges  find  an  act  conflicting  with  a  de- 
cided case,  "they  prefer  the  act  to  the  case,  as  being  of 
higher  authority.  As  between  two  conflicting  acts  they 
prefer  the  latter,  because  it  is  the  last  expression  of  the 
mind  of  Parliament."  If  an  English  judge  find  two  laws 
conflicting  he  merely  looks  at  the  date,  and  the  last  law 
prevails.  There  is  no  such  thing  as  an  invalid  act  of 
Parliament.  That  would  be  like  an  unconstitutional  con- 
stitution. Parliament  is  the  people.  It  is  politically  om- 
nipotent and  what  it  does  stands  in  court  until  the  same 
omnipotent  power  changes  it.  Even  in  other  European 
countries  where  there  are  written  constitutions  binding 
the  legislature,  like  France,  Switzerland,  and  Germany, 
the  courts  are  not  allowed  to  declare  a  legislative  act  in- 
valid. The  legislatures  are  also  the  judges  of  the  Con- 
stitution, and  the  courts  are  bound  to  enforce  the  laws 
of  the  legislature.  In  Switzerland,  whose  Federal  court 
was  instituted  in  imitation  of  ours,  some  points  of  law 
are  reserved  for  an  authority  not  judicial  but  political, 
and  the  Federal  legislature  is  made  the  sole  judge  of  its 
own  powers.1 

However,  our  Supreme  Court  has  exercised  this  power 
to  declare  a  law  unconstitutional  and  to  set  it  aside,  and 
in  doing  so  it  has  described  its  exercise  to  be  an  essen- 
tial characteristic  of  a  government  under  a  written  consti- 
tution. The  written  constitutions  of  those  European 
countries  that  do  not  recognize  this  power  in  the  courts 
have  developed  on  different  historical  lines  than  ours. 
They  have  come  into  use  after  the  functions  of  the  courts 
and  their  relation  to  the  legislative  powers  were  fixed  by 
usage.  In  America,  under  a  new  Constitution,  this  import- 
ant power  of  the  Judiciary  became  a  part  of  our  system, 
1  Bryce,  vol.  i.,  p.  260. 


33°  The  American  Republic 

partly  because  first  exercised  by  the  Court  under  the  in- 
fluence of  great  legal  minds  like  Ellsworth  and  Jay,  and 
partly,  also,  because  of  the  tremendous  influence  in  this 
direction  of  the  great  decisions  of  Chief  Justice  Marshall. 
The  relation  between  this  power  and  a  written  Constitu- 
tion was  first  clearly  brought  out  by  Marshall  when,  in 
his  first  great  decision,  he  was  contending  for  the  right  of 
the  Court  to  set  aside  an  act  of  Congress.  His  masterly 
legal  expression  of  the  principle  can  never  be  improved 
upon : 

"  The  original  and  supreme  will  organizes  the  government 
and  assigns  to  different  departments  their  respective  powers. 
Marshall  ^  may  establish  certain  limits  not  to  be  transcended 

Secures  this  by  those  departments.  Such  is  the  government  of 
Power  for  the  the  United  States.     The  powers  of  the  legislature 

Judiciary  in  r  a 

Marbury  vs.  are  defined  and  limited;  that  those  limits  may  not 
Madison.  ^e  mistaken  Gr  forgotten  the  Constitution  is  written. 
To  what  purpose  are  powers  limited  and  to  what  purpose  is 
that  limitation  committed  to  writing  if  those  limits  may  at  any 
time  be  passed  by  those  intended  to  be  restrained?  The  dis- 
tinctions between  a  government  of  limited  and  one  of  unlimited 
powers  is  abolished  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed.  It  is  a  proposition  too  plain  to  be 
contested  that  the  Constitution  controls  any  legislative  act  re- 
pugnant to  it;  or  that  the  legislature  may  not  alter  the  Constitu- 
tion by  an  ordinary  act.  The  Constitution  is  either  a  supreme, 
paramount  law,  unchangeable  by  ordinary  means,  or  it  is  on 
the  level  of  ordinary  legislative  acts,  alterable  at  the  will  of  the 
legislature.  If  the  former  part  of  the  alternative  be  true  then 
a  legislative  act  contrary  to  the  Constitution  is  not  law.  If  the 
latter  part  be  true,  then  written  constitutions  are  absurd  at- 
tempts on  the  part  of  the  people  to  limit  a  power  in  its  own 
nature  illimitable.  .  .  .  Certainly  all  those  who  have  framed 
written  constitutions  contemplate  them  as  forming  the  funda- 
mental paramount  law  of  the  nation,  and  consequently  the 
theory  of  every  such  government  must  be  that  an  act  of  the 


The  Judiciary  33 J 

legislature  repugnant  to  the  Constitution  is  void.  This  theory 
is  essentially  attached  to  a  written  Constitution  and  is  conse- 
quently to  be  considered  by  this  Court  as  one  of  the  funda- 
mental principles  of  our  society. 

"It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  If  a  law  be  in  opposition 
to  the  Constitution  the  Court  must  either  decide  the  case  con- 
formably to  the  law,  disregarding  the  Constitution;  or  con- 
formably to  the  Constitution,  disregarding  the  law;  the  Court 
must  determine  which  of  the  conflicting  rules  governs  the  case. 
This  is  of  the  very  essence  of  the  judicial  duty.  The  courts 
cannot  close  their  eyes  to  the  Constitution  and  see  only  the 
law.  This  doctrine  would  subvert  the  very  foundation  of  all 
written  constitutions.  It  would  be  giving  to  the  legislature  a 
practical  and  real  omnipotence  with  the  same  breath  which 
professes  to  restrict  their  powers  within  narrow  limits.  It  is 
prescribing  limits  and  declaring  that  those  limits  may  be  passed 
at  pleasure."  ' 

To  the  same  effect  Chief  Justice  Chase  says: 

"  When  a  case  arises  for  judicial  determination  and  the  de- 
cision depends  upon  the  alleged  inconsistency  of  an  act  with 
the  fundamental  law,  it  is  the  plain  duty  of  the  Court  to  com- 
pare the  act  with  the  Constitution  and  if  it  cannot  be  reconciled 
with  the  latter  to  give  effect  to  the  Constitution  rather  than  to 
the  statute.  This  seems  so  plain  that  it  is  impossible  to  make 
it  plainer  by  argument  If  it  be  otherwise,  the  Constitution 
is  not  the  supreme  law,  and  it  would  be  useless  to  inquire 
whether  or  not  an  act  of  Congress  is  in  pursuance  of  it." 

This  does  not  mean  that  the  judicial  department  is 
superior  to  the  legislative,  but  only  that  the  power  of 
the  people  is  superior  to  both.  When  an  act  of  Congress 
is  declared  unconstitutional  there  is  no  conflict  between 

1  Marbury  vs.  Madison,  Cranch  i. 

'Chief  Justice  Chase  in  the  case  of  Hepburn  vs.  Griswold,  1870,  8 
Wallace,  603 


332  The  American  Republic 

the  legislative  and  the  judicial  departments.  The  conflict 
is  merely  between  two  kinds  of  law.  The  Judiciary  must 
say  what  the  law  is  and  decide  every  case  according  to 
the  supreme  law, — the  law  that  is  to  prevail. 

There  are  four  kinds  of  law  in  America :  (i)  The  Federal 
Four  Kinds  of  Constitution.  (2)  Federal  Statutes.  (3)  State 
American  Constitutions.  (4)  State  Statutes.  The  Fed- 
eral Constitution  is  the  "supreme  law,"  and 
all  the  other  forms  of  law  must  be  in  harmony  therewith. 
If  two  laws  conflict,  not  the  later  but  the  higher  prevails; 
the  lower  authority  must  give  way.  The  Court  in  in- 
terpreting the  law  merely  states  what  the  higher  law  re- 
quires and  shows  wherein  the  lower  law  is  inconsistent 
with  this.  The  judges  must  regulate  their  decisions  by 
the  fundamental  laws  rather  than  by  those  that  are  not 
fundamental.  It  is  the  law,  not  the  will  of  the  judges, 
that  prevails.  The  will,  or  opinion,  of  the  judge  should 
have  nothing  to  do  with  the  case.  He  may  think  one  law 
good  and  another  bad ;  as  a  judge  he  is  bound  to  allow 
only  that  one  to  stand  which  is  in  harmony  with  the  Con- 
stitution. If  he  be  guided,  not  by  the  law  but  by  his  per- 
sonal interests  or  his  political  views,  he  is  unfit  for  his 
place,  and  a  decision  inspired  by  such  motives  will  arouse 
popular  displeasure  and  distrust.  If  the  case  were  fla- 
grant and  odious  it  might  provoke  resistance  and  cause 
the  Court  to  become  the  object  of  public  and  political 
attack. 

The  Court  has  generally  sought  to  avoid  politics,  and 
it  has  been  strong  just  in  proportion  as  it  has  succeeded. 

The  su  reme  ^et  ^  ^as  no*  a^ways  Deen  able  to  keep  itself 
Court  and  above  political  discussion  and  free  from  party 
strife  and  conflict.  Jay's  decision  in  the  famous 
case  of  Chisholm  vs.  Georgia  aroused  the  adherents  of 
States'  rights  and  they  demanded  the  Eleventh  Amend- 
ment. The  Federalists  on  the  eve  of  their  retirement  in 
1800  sought  to  enlarge  the  scope  of  the  Judiciary  and  to 


The  Judiciary  333 

provide  for  some  Federalist  appointments  and  John 
Adams's  "midnight  judges  "  aroused  party  criticism  and 
opposition.  The  Jeffersonian  Republicans,  when  they 
came  into  power,  not  being  able  to  remove  the  Federalist 
judges  from  office  nor  reduce  their  compensation,  abol- 
ished the  courts  by  repealing  the  law  that  created  them. 
It  being  unconstitutional  to  remove  the  judge  from  the 
office,  they  removed  the  office  from  the  judge.  Marshall's 
nationalizing  decisions  aroused  the  opposition  of  the 
States'  Rights  school,  and  the  bank  decisions  of  the  Court 
aroused  local  political  opposition  in  some  of  the  States. 
In  1857,  the  most  serious  introduction  of  the 
Court  into  the  arena  of  politics  occurred  by  the  opposition  to 
Dred  Scott  decision.     The  chief  political  issue the  Dred  Scott 

,  ...  ,        ,  Decision, 

between  parties  at  that  time  was  as  to  whether 
or  not  Congress  should  prohibit  slavery  in  the  Territories. 
The  Republican  party  had  come  into  being  primarily  upon 
the  demand  that  slavery  should  be  prevented  by  national 
power  from  entering  the  Territories.  In  deciding  the 
Dred  Scott  case  and  remanding  Dred  to  slavery,  which 
the  Court  might  have  done  merely  by  the  application  of 
Missouri  law,1  the  Court  went  aside  to  give  its  opinions 
upon  the  controverted  political  questions  of  the  day.  If 
the  opinion  of  the  Court  were  to  be  taken  as  a  guide  in 
the  politics  of  the  country,  the  Republican  party  had  no 
longer  any  reason  for  existence.  The  Republican  leaders, 
Sumner,  Stevens,  Lincoln,  and  others,  denounced  the 
decision  as  partisan,  Lincoln  and  Seward  going  so  far  as 
to  accuse  the  venerable  Chief  Justice  and  President 
Buchanan  of  collusion  in  the  preparation  of  the  decision. 
The  Republican  party  still  pursued  the  political  course 
that  had  been  condemned  by  the  Court,  and  the  only  in- 
jury done  was  to  the  Court  itself.  The  Republican  party, 
as  a  party,  denounced  the  decision  as  "a  dangerous  poli- 
tical heresy,  revolutionary  in  its  tendency  and  subversive 

1  See  p.  324. 


334  The  American  Republic 

of  the  peace  and  harmony  of  the  country."  The  Repub- 
licans came  into  power  denouncing  the  Supreme  Court  and 
repudiating  its  decision. 

The  "greenback"  decisions  of  the  Court  have  also 
aroused  political  opposition.  Whether  Congress  should 
.  .     t.         issue  legal-tender  notes  to  be  used  as  money, 

And  to  the  &  _  ■' 

Greenback  as  bank-notes  are,  is  a  public  financial  question 
Decisions,  tQ  be  determined  by  the  political  department  of 
the  Government.  Politically  the  country  is  greatly  divi- 
ded upon  this  question.  The  Supreme  Court  has  ruled 
in  favor  of  the  constitutional  power  of  Congress  to  do  this. 
The  Court  at  first  decided  (1870)  that  this  power  did  not 
rest  with  Congress.  But  the  Court  was  soon  changed  in  its 
personnel  by  the  creation  of  a  new  justiceship  and  by  the 
filling  of  a  vacancy,  and  a  new  case  was  gotten  up.  The 
opinion  of  the  two  new  judges  was  already  known  from 
their  having  passed  on  similar  cases  in  lower  courts,  and 
when  the  new  decision  came  the  majority  of  the  judges 
held  that  Congress,  in  the  exercise  of  a  war  power,  might 
issue  legal-tender  notes.  Later,  in  1884,  in  still  another 
case,  the  Court  held,  with  only  one  dissenting  voice,  that 
this  power  rests  with  Congress  in  time  of  peace  as  well 
as  in  time  of  war.  This  decision  was  thought  to  be 
dangerous  by  some  whose  political  and  financial  opinions 
were  offended  by  it.1 

Previous  to  the  campaign  of  1896,  the  Populist  party 

and  many  Democratic  conventions  in  the  States  demanded 

a  national  Income  Tax,  and,  in  1804,  a  Demo- 

And  to  the  -7^' 

income  Tax  cratic  Congress  passed  such  a  tax.  The  Sup- 
Decisions.  reme  Court,  by  a  vote  of  five  to  four,  one 
judge  having  changed  his  mind,  declared  it  unconstitu- 
tional and  set  it  aside,  thus  reversing  previous  decisions 
on  this  subject.     This  offended  the  Democrats,  and  in 

1  See  George  Bancroft's  The  Constitution  Wotmded  in  the  House  of  its 
Friends  ;  James's  Legal  Tender  Decisions  ;  Papers  of  the  American  Eco- 
nomic Association. 


The  Judiciary  335 

1896,  the  Democratic  Convention,  like  the  Republicans 
in  i860,  denounced  the  decision,  saying  that  it  was  con- 
trary to  "the  uniform  decisions  of  that  Court  for  nearly 
one  hundred  years, ' '  the  Court  having  sustained  objections 
to  the  law  "which  had  been  previously  overruled  by  the 
ablest  judges  who  have  ever  sat  on  that  bench."  The 
Democrats  also  denounced  "government  by  injunction  as 
a  new  and  highly  dangerous  form  of  oppression  by  which 
Federal  judges,  in  contempt  of  the  law  of  the  States  and 
rights  of  citizens,  become  at  once  legislators,  judges,  and 
executioners." 

The  reversal  of  the  Supreme  Court's  decision  in  the 
legal-tender  cases  revealed  the  weak  point  in  its  organiza- 
tion. It  is  within  the  power  of  Congress  and  The  Weak 
the  President  to  "pack"    the   Court,   if  they     Point  in  the 

Armor  of  the 

have  a  mind  to  do  so.  The  number  ot  the  supreme 
Court  can  be  increased  by  act  of  Congress  from  Court- 

nine  to  fifteen,  or  to  any  other  convenient  number.  If 
Congress  and  the  President  are  determined  to  do  what 
the  Court  asserts  to  be  unconstitutional  they  have  only 
to  reorganize  the  Court  by  increasing  the  membership 
"and  by  filling  up  the  Court  with  judges  who  will  give  the 
desired  opinion.  If  the  opinions  of  the  President's  new 
appointees  to  the  Court  can  be  known  in  advance,  almost 
any  case  that  it  is  desired  to  have  reversed  could  be  re- 
versed in  this  way.  This  would  of  course  impair  the  use- 
fulness of  the  Court,  and  while  this  manner  of  controlling 
it  by  political  legislation  is  possible  it  is  hardly  probable. 
The  respect  of  the  Americans  for  law  and  for  this  their 
highest  legal  tribunal  may  be  depended  upon  to  restrain 
action  in  this  direction.  There  should  be  some  way  by 
which  the  sovereign  will  of  the  people  can  work  out  its 
purposes,  even  against  the  obstacles  of  court  decisions. 
The  Court  must  be,  in  the  last  resort,  amenable  to  the 
will  of  the  people. 

As  national  judges  may  declare  a  State  law  unconstitu- 


33&  The  American  Republic 

tional,  so  may  a  State  judge  declare  a  national  law  un- 
constitutional.     He  may  be  overruled  in  this  decision  by 
a  national  court  on  appeal,  but  if  a  State  cir- 

A  State  Judge  .rr 

may  set  Aside  curt  judge,  or  even  a  justice  of  the  peace,  finds 
a  National       a  national  law  in  his  way  in   the  trial  of  a  case 

Law-  i    -r      •        i    •        •        i  11 

and  it,  in  his  judgment,  the  law  is  unconstitu- 
tional, it  is  his  right,  or  rather  his  duty,  to  say  so.  If 
he  does  not  judge  aright  there  is  a  chance  for  a  higher 
court  to  say  so. 

Although  this  practice  of  declaring  acts  unconstitu- 
tional is  described  by  the  jurists  as  merely  revealing  and 
"  Court-made  interpreting  the  law,  and  not  making  the  law, 
Law."  yet  the  practice  makes  possible  a  good  deal  of 

"court-made  law," — law  that  is  made,  or  prevented,  by 
decisions  and  constructions  contrary  to  the  legislative  in- 
tention. In  deciding  what  law  we  shall  have  and  in  the 
determination  of  public  policies,  this  practice  seems  very 
Can  the  much  like  establishing  the  supremacy   of  the 

Judiciary  COUrtS    Over    the    legislature.       In     1895,    for    in- 

Subordinate  i         r>  r*  i-tit-11  1 

the  Legis-  stance,  the  Supreme  Court  01  Illinois  declared 
lature?  t]ie  eight-hour  law  of  that  State   unconstitu- 

tional on  the  ground  that  the  right  to  make  contracts  is 
an  inherent  and  inalienable  right,  and  this  eight-hour  law 
abridged  this  right,  restricting  the  fundamental  right  of 
the  citizen  to  dispose  of  his  time  as  he  pleased.  A  New 
York  court  has  lately  held  that  such  a  law  violates  the 
freedom  of  contract  guaranteed  by  the  Constitution. 
The  progressive  inheritance  tax  of  Ohio,  by  which  it  was 
sought  to  place  a  fair  share  of  public  burdens  upon  the 
receivers  of  great  wealth,  was  declared  to  be  unconstitu- 
tional by  the  Supreme  Court  of  that  State,  on  the  ground 
that,  by  a  provision  of  the  Constitution  of  Ohio,  citizens 
of  that  State  may  be  taxed  only  in  proportion  to  their 
property.  If  the  English  courts  had  possessed  such 
powers  every  one  of  the  progressive  labor  laws  of  that 
country  by   which   the   hours   of    labor  for  women  and 


The  Judiciary  337 

children  have  been  shortened  might  have  been  over- 
thrown, and  the  Progressive  Income  Tax  law  might  have 
met  the  same  fate. 

"  These  decisions  illustrate  the  fact  that  the  American  sys- 
tem of  the  supremacy  of  the  courts  is  less  democratic  in 
practice  as  well  as  in  theory  than  the  English  system  of  the 
supremacy  of  Parliament.  Parliamentary  government  makes 
possible  more  legislation  in  behalf  of  the  common  people  than 
government  by  the  courts.  The  contrast  between  the  English 
and  American  systems  brings  out  strongly  two  points:  first, 
that  written  constitutions  instead  of  being  a  safeguard  for  the 
common  people  may  be  a  safeguard  to  vested  interests;  and 
secondly,  the  fact  that  in  England  Parliament  is  supreme  and 
can  do  almost  anything  facilitates  the  passage  of  progressive  laws 
to  an  extent  that  is  impossible  where  courts  are  supreme."  J 

The  Court  never  goes  to  meet  a  question.     It  awaits 
the  question  to  come  before  it  by  a  suit  at  law.     Smith 
sues  Brown  in  Texas,  and  after  the  decisions  of 
lower  courts  in  that  State  and  after  the  law's        ^^^  and 
further  delays,  the  case  comes  up  on  appeal  to        Decisions 

,        „  _  t      •  1         1  1  1  are  Secured. 

the  Supreme  Court.  It  is  only  then  that  the 
Supreme  Court  can  notice  the  questions  involved,  though 
they  may  have  been  discussed  in  Congress  and  in  political 
circles  for  years  before.  The  Justices  will  not  express  an 
opinion  upon  the  constitutionality  of  a  law  in  advance  of 
a  case  arising  under  it,  nor  upon  any  proposed  measure. 
They  will  not  advise  the  Executive  as  to  the  constitu- 
tionality of  a  law.  In  1793,  Washington  requested  the 
opinion  of  the  Court  on  the  construction  of  the  French 
treaties  of  1778.  The  Justices  refused  to  comply.  In 
some  States  the  constitution  requires  such  an  opinion 
from  the  court  as  a  speedy  means  of  determining  the 
status  of  the  law.  In  such  cases  an  opinion  on  a  pro- 
posed law  becomes  a  constitutional  duty.      In  the  absence 

1  Outlook,  April  6,  1895. 


338  The  American  Republic 

of  such  a  means  of  coming  by  an  authoritative  decision, 
the  Executive  must  consult  his  Attorney-General.  A 
Justice  while  ruling  upon  a  law  is,  of  course,  in  no  way 
bound,  not  even  by  the  law  of  consistency,  to  decide  in 
harmony  with  an  opinion  he  may  previously  have  ex- 
pressed while  acting  in  another  capacity.  In  1862,  while 
Chief  Justice  Chase  was  Secretary  of  the  Treasury  he 
urged  the  passage  of  the  Legal  Tender  Act  and  he  ex- 
pressed the  opinion  that  it  was  constitutional.  In  1870, 
while  acting  as  Chief  Justice,  he  rendered  a  decision 
against  the  constitutionality  of  this  law. 

The  great  function  of  the  Supreme  Court  in  the  de- 
velopment of  our  Government  has  been  the  interpretation 
and  construction  of  the  Constitution. 

The  Constitution  has  changed  and  developed  in  three 
ways:   I.   By  amendments ;  2.   By  interpretation  and  con- 
The  con-        struction  ;  3.   By  usage, 
stitution  Amendments   to    the    Constitution    may    be 

Develops:  . 

1.  By  Amend- made  in  two  ways : 

ment-  (1)  Congress  may  by  a  two-thirds  vote  of 

each  house  prepare  and  propose  an  amendment.  If 
this  be  ratified  by  the  legislatures  of  three  fourths  of 
the  States  it  becomes  a  part  of  the  Constitution.  Fifteen 
amendments  have  been  obtained  in  this  way.  Of  these, 
however,  ten  were  obtained  at  the  beginning,  urged  al- 
most as  a  condition  precedent  to  the  adoption  of  the 
Constitution,  and  these  ten  may  be  regarded  therefore  as 
a  part  of  the  original  instrument,  while  the  last  three 
amendments  were  approved  by  a  sufficient  number  of 
States  under  very  extraordinary  political  circumstances. 
In  more  than  one  hundred  years  only  two  amendments 
have  been  added  under  ordinary  conditions.  Growth  by 
the  process  of  amendment  is  very  difficult  and  laborious.1 
(2)  The  other  method  of  amendment  is  that  Congress, 
upon  the  application  of  the  legislatures  of  two  thirds  of 

'  See  p.  347. 


The  Judiciary  339 

the  States,  shall  call  a  Convention  for  proposing  amend- 
ments, these  proposals  to  be  valid  when  ratified  by  the 
legislatures  of  three  fourths  of  the  States.  No  amend- 
ment has  ever  been  obtained  by  this  method. 

While  the  Constitution  has  developed  considerably  by 
amendment,  it  has  been  developed  much  more  by  con- 
struction and  interpretation  and  especially  by 
construction.  Interpretation  and  construction  pretation  and 
are  frequently  used  interchangeably,  but  a  dis-  Constructlon- 
tinction  between  them  should  be  drawn.  Interpretation 
has  to  do  with  the  meaning  of  the  written  text.  It  is  the 
art  of  finding  out  the  true  sense  of  any  form  of  words ;  it 
applies  to  questions  as  to  the  meaning  of  a  term  or  phrase, 
with  the  purpose  of  making  clear  and  understood  any 
passage  that  was  before  ambiguous  and  uncertain.  A 
case  arises,  and  it  is  claimed  that  the  Constitution  says 
something  which  bears  or  is  supposed  to  bear  upon  the 
matter.  What  do  the  words  in  question  mean? 
And  do  they  bear  upon  the  case?  These  are  between  Con- 
questions  of  Interpretation.      Construction  has   struction  and 

,  •   i        1         y-  •  11  T     Interpretation. 

to  do  with  the  Constitution  as  a  whole.  It 
seeks  and  applies  the  probable  aim  and  purpose  of  the 
whole  document,  determining  what  powers  result  from  it 
or  are  implied  in  it.  Construction  compares  one  part  of 
the  Constitution  with  all  other  parts  and  it  takes  cog- 
nizance of  subjects  that  lie  beyond  the  direct  expressions 
of  the  text, — as,  for  example,  the  nature  and  character  of 
civil  government  and  of  sovereignty,  and  the  evidences 
from  history  and  contemporary  expression  as  to  the  pur- 
poses in  the  making  of  the  Constitution.  By  liberal  or 
broad  construction,  the  Constitution  has  been  greatly 
developed  and  the  limits  of  power  have  been  more  and 
more  closely  and  clearly  defined.  It  is  upon  Construction 
that  the  great  political  and  constitutional  differences  in 
our  history  have  arisen.  Interpretation  has  been  chiefly 
a  matter  of  law  ;  Construction  has  been  largely  a  matter 


34°  The  American  Republic 

of  politics.  By  this  it  is  meant  that  the  political  depart- 
ments of  the  Government  have  also  construed  the  Con- 
stitution. Construction  has  had  to  do  with  a  field  that 
has  offered  a  fundamental  issue  between  political  parties 
in  America,  the  issue  between  national  powers  and  States' 
rights.  But  the  permanent  and  effectual  construction 
which  has  been  more  or  less  accepted  by  all  parties  as 
determining  the  scope  of  constitutional  powers  and  the 
character  of  the  Government  is  the  construction  of  the 
Supreme  Court.  This  construction  has  come  as  from  a 
judicial  and  impartial  arbiter,  but  it  has  had  very  im- 
portant political  bearing. 

Marshall 's  principles  of  Construction  as  to  the  extent  of 
national  powers  may  be  accepted  as  final.  His  two 
„    .„,        canons  of  construction  are: 

Marshall's 

Principles  of  i.  Every  power  claimed  by  the  National 
construction.  Government  must  be  affirmatively  shown  to 
have  been  granted.  There  is  no  presumption  in  favor  of 
such  power.  The  burden  of  proof  rests  with  those  who 
assert  its  existence.  Something  in  the  Constitution  must 
be  pointed  out  that  expressly  or  impliedly  confers  this 
power. 

2.  When  once  the  grant  of  power  is  established  the 
powers  will  be  construed  broadly.  When  it  is  shown 
that  the  end  is  legitimate,  that  the  proposed  power  is 
constitutional,  any  reasonable  means  may  be  allowed. 
The  Court  will  be  strict  in  determining  the  existence  of  a 
power,  but  liberal  in  applying  the  power  if  found  to  exist. 
When  the  people  have  conferred  a  power  they  have  con- 
ferred a  wide  discretion  as  to  its  use. 

During  the  Civil  War,  President  Lincoln's  construction 
of  his  powers  rested  upon  a  higher  law  than 
co^liction  the  mere  words  of  the  Constitution.  He  held 
of  His  war  that  his  oath  to  preserve  the  Constitution  im- 
posed upon  him  the  duty  of  preserving  the 
nation  of  which   the   Constitution   was   but   the  organic 


The  Judiciary  341 

law.  It  was  not  possible  to  lose  the  nation  and  yet 
preserve  the  Constitution.  "So  a  measure,  otherwise 
unconstitutional,  may  become  lawful  by  becoming  indis- 
pensable to  the  preservation  of  the  Constitution  through 
the  preservation  of  the  nation."  Any  government,  in 
order  to  preserve  its  own  life,  will  construe  its  powers  in 
such  a  way  as  to  justify  its  overstepping  its  ordinary 
limitations  in  periods  of  extraordinary  danger. 

"The  creation  of  a  system  of  United  Courts,  extending 
throughout  the  States,  and  empowered  to  define  the  boundaries 
of  Federal  authority,  and  to  enforce  its  decisions  by  Federal 
power  supplied  the  element  needed  to  bring  order  out  of 
chaos.  Without  it  the  Constitution  might  easily  have  proved 
a  more  disheartening  and  complete  failure  than  the  Articles  of 
Confederation."  ' 

Probably  no  institution  in  our  history  has  done  more  to 
strengthen  and  sustain  American  nationality  than  has  the 
Supreme  Court.  It  has  obtained  the  respect  of  all  nations, 
and  usually  it  has  possessed  the  confidence  of  all  parties. 
Its  dignity,  ability,  and  impartial  fairness  have  com- 
mended it  to  the  people. 

1  Johnston's    History   of  American   Politics,  cited  by  Hinsdale,    Civil 
Government. 

REFERENCES 

1.  Bryce,  American  Commonwealth. 

1.  Willoughby,  The  Supreme  Court. 

3.  Cooley,  Constitutional  Law  and  Constitutional  Limitations. 

4.  Hinsdale,  Civil  Government. 

5.  Lalor,  Cyclopedia  of  Political  Science  and  United  States  History  ;  arti- 

cle  on   "The  Judiciary"  in    United  States  History  by   Professor 
Johnston. 

6.  History  of  the    United  States,   McMaster,  Von   HOLST,   Schouler, 

Rhodes. 


CHAPTER   VII 

THE   STATES   AND   THEIR   GOVERNMENT 

IN  the  American  system  of  government  the  State  is  as 
important  as  the  Nation.  So  far  as  the  citizen's 
personal  interests  are  concerned,  in  all  the  affairs  that 
directly  touch  his  civic  life,  the  State  is  even  more  im- 
Reiativeim-  portant  than  the  Nation.  While  the  State 
portance  of      does  not  excite  so  much  interest,  nor  occupy 

the  State  in  rj 

the  Life  of  so  large  a  share  of  the  people  s  attention  as 
the  citizen,  does  the  Nation  ;  while  the  affairs  of  the  States, 
their  constitutions,  their  officers,  and  the  functions  of  these 
officers  are  not  so  well  known,  yet  in  the  great  multitude 
of  affairs  in  which  civil  and  criminal  laws  are  of  concern 
to  the  citizen,  the  State  may  touch  the  citizen  a  hundred 
times  where  the  Nation  touches  him  once.  It  is  the  State 
that  deals  with  all  the  ordinary  relations  of  citizens  to  one 
another.      Mr.  Bryce  says : 

"  An  American  may,  through  a  long  life,  never  be  reminded 
of  the  Federal  Government,  except  when  he  votes  at  presi- 
Stat  dential  and  congressional  elections,  buys  a  package 

Functions.  of  tobacco  bearing  the  Government  stamp,  lodges 
Bryce.  a  COmplaint  against  the  post  office,  and  opens  his 

trunk  for  a  custom  house  officer  on  a  pier  at  New  York  when 
he  returns  from  a  tour  in  Europe.  His  direct  taxes  are  paid 
to  officials  acting  under  State  laws.  The  State,  or  a  local 
authority  constituted  by  State  statutes,  registers  his  birth,  ap- 
points his  guardian,  pays  for  his  schooling,  gives  him  a  share 
in  the  estate  of  his  father  deceased,  licenses  him  when  he 

342 


The  States  and  their  Government     343 

enters  a  trade,  marries  him,  divorces  him,  entertains  civil 
actions  against' him,  declares  him  a  bankrupt,  and  hangs  him 
for  murder.  The  police  that  guard  his  house,  the  local  boards 
that  look  after  the  poor,  control  highways,  impose  water  rates, 
manage  schools, — all  these  derive  their  legal  powers  from  the 
State  alone.  In  comparison  with  such  a  number  of  functions 
the  Federal  Government  is  but  a  department  for  foreign 
affairs."1 

Thus  it  is  seen  that  in  dividing  the  governmental  func- 
tions between  State  and  Nation  while  the  Nation  gets  the 
highest  the  State  gets  the  most ;  so  the  balance  is  pretty- 
well  preserved.  Each  State  has  a  constitution  of  its  own. 
This  constitution  in  every  case  provides  for  an  Executive, 
or  Governor,  a  Legislature  of  two  Houses,  a  Judiciary 
with  a  system  of  civil  and  criminal  procedure.  Each 
provides  a  system  of  local  self-government  in  counties, 
cities,  townships,  and  school  districts,  with  a  system  of 
State  and  local  taxation. 

The  constitutions  of  the  States  were  mainly  derived 
from  the  same  source.  The  constitutions  of  Massachusetts 
and  Virginia  furnished  models  for  many  of  the  state  Con_ 
Western  States.     The  original  States  derived        stations 

Came  from 

their  constitutions  either  from  old  English  colonial 
statutes  and  principles  of  law,  or  from  the  charters. 
original  charters  to  the  Colonies.  The  colonial  charter 
was  nothing  more  nor  less  than  a  constitution.  It  was 
"an  instrument  of  government  established  by  a  superior 
authority  creating  subordinate  law-making  and  adminis- 
trative bodies  that  could  not  transcend  the  powers  laid 
down  in  the  instrument  creating  them."  When  the 
Colony  became  an  independent  State,  the  supreme  power 
that  had  abided  in  King  and  Parliament  competent  to 
create  a  colonial  constitution  and  impose  limits  on  gov- 
ernmental agencies  passed  to  the  people  of  the  inde- 
pendent  State.     The  legislature,  executive,  and   courts 

1  American  Commonwealth,  i.,  425,  426. 


344  The  American  Republic 

of  the  State  remained  limited  as  they  had  been,  and  the 
people  of  the  Colony  in  their  primary  capacity  became 
the  sovereign  constitution-making  power  in  the  State.1 

The  citizens  within  the  limits  of  the  old  Colony  were 
the  body  politic.  They  were  the  State.  This  body 
politic  had  absolute  and  supreme  authority  over  the 
citizen  within  its  bounds,  in  all  matters  in  respect  to  which 
he  was  a  subject  of  government.  The  new  State  had  as 
it  now  retains,  absolute  control  over  all  local  political 
bodies  within  its  limits,  its  counties,  cities,  and  town- 
ships. It  had,  and  retains,  power  to  remodel  city  charters 
and  revise  city  governments;  it  may  reorganize  or  dis- 
organize its  counties  and  townships,  and  there  is  no  appeal 
to  any  higher  authority  against  its  action.  In  the  matter 
.    .        of  limitations  on  legislative  power,  the  funda- 

Constitutional  &  r 

Limitations  on  mental  difference  between  the  United  States 
Legislative      Constitution  and  the  State  constitution  lies  in 

Power  in 

state  and  this :  The  States  voluntarily  deprive  them- 
selves of  and  relinquish  to  the  national  legis- 
lature the  powers  which  that  body  may  exercise;  all 
other  powers  are  retained  to  the  States.  The  people  of 
the  States  have  conferred  certain  legislative  powers  on 
the  national  Congress,  denying  these  to  themselves,  but 
retaining  all  others.  But  in  forming  their  State  con- 
stitution the  people  of  a  State  do  not  confer  legislative 
power  on  their  legislature.  From  the  nature  of  the 
sovereign  State  all  the  residuary  mass  of  powers  abides  in 
the  legislature,  unless  denied.  The  people  restrict  their 
State  legislature  in  certain  respects,  including  all  the  re- 
strictions of  the  United  States  Constitution,  but  in  all 
other  respects  in  which  government  is  competent  to  act, 
the  legislature  of  a  State  is  free,  sovereign,  and  supreme. 
He  who  asserts  the  power  of  a  State  legislature  to  pass 
an  act  or  establish  an  institution  has  not  to  prove  it ;  but 
he  who  denies  the  power  must  cite  the  clause  of  the  Con- 
1  See  Bryce,  vol.  i.,  p.  429. 


The  States  and  their  Government     345 

stitution  forbidding  it.  Barring  the  specified  restrictions 
of  the  State  and  national  constitutions  the  power  of  a 
State  legislature  is  like  that  of  the  British  Parliament :  it 
is  plenary  and  unlimited,  and  it  may  legislate  for  all 
purposes  of  civil  government  and  do  all  things  that  inde- 
pendent governments  may  do.  In  framing  a  State  con- 
stitution the  people  commit  to  the  legislature  the  whole 
law-making  powers  of  the  State  which  they  do  not  ex- 
pressly or  impliedly  withhold.1     Of  course,  all 

,  ,  „  The  Depart- 

departments  of  the  State  government,  legisla-  ments  of 
tive,  executive,  and  judicial,  are  limited  by  the     Government 

J  -'  are  Separate 

State  constitution  to  their  respective  spheres  and  Re- 
and  cannot  infringe  the  one  upon  the  other.  stncted. 

The  rights  of  the  States  are  defined  partly  by  their 
reserved  powers,  partly  by  the  powers  withheld  from 
them  by  the  United  States  Constitution,  partly  states'  Rights 
by  the  powers  conferred  on  the  National  Gov-  Defined, 
ernment,  partly  by  the  judicial  decisions  and  interpreta- 
tions of  the  courts,  and  partly  by  the  accepted  facts  of 
our  national  history.  Whatever  these  rights  may  have 
included  in  the  past,  it  is  certain  that  they  do  not  include 
the  right  of  nullification  and  secession.  Nullification 
was  settled  by  Andrew  Jackson ;  and  that  a  State  may 
not  secede  was  settled  as  one  of  the  prime  results  of  the 
Civil  War.  No  State  may  attempt  to  coerce  another, 
nor  establish  diplomatic  relations  with  another  State,  nor 
in  any  way  deal  with  nor  act  upon  another.  These 
powers  touching  inter-State  and  foreign  relations  are 
conferred  on  the  General  Government. 

From  what  has  been  said,  it  will  be  understood  that 
the  State  constitutions  do  not  derive  their  authority  from 
Congress.  The  States  do  not  receive  their  powers  from 
the  General  Government.  In  Canada  the  Provinces  have 
only  those  powers  that  are  conferred  upon  them  by  the 
Constitution  of  the  Dominion,  while  all  other  powers  are 

'See  Cooley's  Constitutional  Limitations,  p.  107  ;  Bryce,  vol.  i.,  p.  445. 


34-6  The  American  Republic 

reserved  to  the  Dominion  Parliament.1     In  the  States  it 

is  just  the  other  way.     The  powers  expressed  in  the  State 

constitutions    are    original    and    inherent,   not 

State  Powers  , 

are  original  conferred.  Congress  does  not  determine  the 
and  inherent,  terms  of  these  instruments.     Congress  may  in- 

Not  Conferred.  &  J1 

nuence  the  character  of  a  State  constitution  by 
imposing  such  conditions  upon  the  admission  of  a  State 
as  will  lead  it  to  conform  its  constitution  to  certain  re- 
quirements, as  was  proposed  in  the  case  of  Missouri,  in 
1820.  But  it  is  doubted  whether  Congress  possesses  con- 
stitutional authority  to  do  this,  and  it  is  a  power  that  is 
rarely  exercised.  If  conditions  were  imposed  upon  an  in- 
coming State  and  the  State  should  subsequently  amend 
its  constitution  in  order  to  have  its  own  way,  Congress 
would  have  no  remedy  against  such  action  by  the  State, 
except  to  deny  to  the  people  of  the  State  representation 
in  the  two  Houses  of  Congress.  The  State  would  still 
remain  in  the  Union  in  the  exercise  of  local  self-govern- 
ment in  the  control  of  all  its  own  domestic  laws  and  in- 
stitutions, like  the  other  States. 

State  constitutions  are  usually  adopted  by  State  con- 
ventions elected  for  that  purpose.  The  constitution  after 
„     „  being  framed  by  the  convention  is  then,  as  a 

How  State  &  J  ' 

Constitutions  rule,  submitted  to  the  people  of  the  State  for 
are  Made.  ratification  or  rejection.  If  the  constitution  is 
rejected  at  the  polls  a  new  constitution  is  devised  by  the 
convention ;  if  ratified,  the  constitution  is  proclaimed  by 
the  governor,  or  legislature,  appointed  to  perform  that 
function.  Sometimes  a  new  constitution  is  adopted  in  a 
State  merely  by  the  constitutional  convention  without 
submitting  it  to  the  people.  This  is  a  departure  from  the 
American  constitutional  usage,  and  is  resorted  to  usually 
from  fear  that  the  voters  under  the  old  constitution  will 
not  approve  certain  proposed  features  in  the  new.  Under 
this  practice  the  convention  is  looked  upon  as  holding 

1  British  North  America  Act,  1867. 


The  States  and  their  Government     347 

within  itself  the  sovereign  and  supreme  will  of  the  people. 
This  method  of  constitution-making  is  resorted  to  more 
in  the  South  than  elsewhere  as  a  more  convenient  means 
of  imposing  suffrage  restrictions.  It  is,  of  course,  not  so 
democratic  as  the  method  of  popular  ratification. 

In  the  process  of  amending  a  State  constitution  the 
legislature  takes  the  initiative.  The  amendment  must  be 
made  according  to  the  provisions  of  the  exist- 

0  r  Amending 

ing  constitution.     These  will  probably  require  state 

that  the  proposed  amendment  shall  pass  the  Constitutions- 
legislature  by  a  two-thirds  majority,  or  by  a  majority  in 
two  successive  legislatures,  and  then  be  submitted  to  the 
people  for  approval.  Or,  the  legislature  may  call  a  Con- 
stitutional Convention,  or  ask  the  people  to  decide  upon 
the  desirability  of  such  a  convention  for  the  purpose  of 
revising  the  whole  constitution  or  of  making  a  new  one. 
When  a  constitutional  amendment  is  submitted    , 

Amendments 

to  the  people  for  ratification,  however  desirable  are  Difficult 
the  amendment  may  be,  it  is  likely  to  fail  of  t0  ecure' 
adoption  from  the  indifference  and  apathy  of  the  voters. 
If  the  amendment  be  submitted  at  a  special  election  the 
majority  of  the  voters  may  not  care  enough  about  the 
matter  to  come  to  the  polls.  If  submitted  at  a  general 
election,  many  voters  will  be  likely  to  vote  for  State  and 
National  officers  while  failing  to  vote  on  the  amendments; 
and  as  the  constitution  will  generally  require  a  majority 
of  all  the  votes  cast  to  carry  an  amendment,  the  amend- 
ment may  fail  merely  from  the  failure  of  the  voters  to  ex- 
press themselves  upon  it.1 

Constitution-making  or  amending,  by  popular  vote,  is 
one  of  the  chief  forms  of  the  referendum  in  America. 
The  making  of  local-option  laws  on  the  liquor    „         ... 

o  r  T-  Forms  of  the 

traffic,  and  money  grants  by  taxation  to  aid  Referendum 
in  building   railroads,   are  other  forms   of  the     mt  e  tate' 

1  See  The  Nation,  Jan.  10,  1902,  for  failure  of  Referendum  on  Amend- 
ments. 


348  The  American  Republic 

referendum.  By  the  referendum  is  meant  the  provision 
that  laws  must  be  referred  to  the  people  before  they 
can  be  binding.  The  referendum  is  generally  associated 
with  the  imperative  mandate.  This  provides  that  when  a 
certain  proportion  of  the  people  have  petitioned  for  the 
enactment  of  a  law,  this  shall  serve  as  a  mandate  to  the 
legislature  to  submit  the  act  to  a  popular  vote.  Of  course 
only  questions  relating  to  general  public  policy,  and  not 
statutory  matter  touching  private  and  local  law,  would  be 
so  submitted. 

The  objection  to  the  referendum  is  that  the  people  will 
be  too  frequently  disturbed ;  that  they  will  not  be  inter- 
ested in  voting  on  the  proposed  laws,  as  experience  has 
shown  in  the  efforts  to  amend  State  constitutions.' 

Though  a  State  legislature  might  permit  a  referendum 
for  its  guidance,  the  legislature  itself  would  have  to  enact 
the  law  unless  the  constitution  of  the  State  be  first  so 
amended  as  to  provide  for  law-making  by  referendum.  It 
is  a  maxim  of  law  that  delegated  power  may  not  be  dele- 
gated. When  the  supreme  power — the  people — have 
vested  law-making  in  the  legislature,  it  must  remain  there 
until  the  people  determine  otherwise  by  a  new  constitu- 
tion. ' '  The  power  to  whom  this  duty  has  been  entrusted 
cannot  relieve  itself  of  responsibility  by  choosing  other 
agencies  upon  whom  the  power  shall  be  devolved." 

The  State  legislature  is  bicameral  in  form.  Both 
The  state  Houses  are  chosen  by  popular  vote,  by  the 
Legislature.  same  voters,  but  in  electoral  districts  of  differ- 
ent sizes. 

Senatorial  districts  are  larger  than  Representative  dis- 
tricts ;  consequently  there  are  fewer  Senators. 

The  senatorial  term  is  generally  longer.  The  usual 
term  of  a  Representative  is  two  years;  the  senatorial 
term  in  most  of  the  States  is  for  four  years.     The  State 

1  See  The  Nation,  Jan.  10,  1902. 

'Cooley,  Constitutional  Limitations,  p.  141. 


The  States  and  their  Government     349 

Senate,  like  the  national  Senate,  is  a  permanent  body; 
half  its  number  are  old  members,  or  "hold-over  Sena- 
tors," who  sit  in  two  consecutive  legislatures.  The 
eligible  age  of  the  Senators  is  usually  higher  than  that  of 
the  Representatives. 

The  State  Senators  and  Representatives  are  usually 
apportioned  among  the  several  counties  of  the  State  ac- 
cording to  population,  and  the  electoral  dis-  Apportion- 
tricts  are  expected  to  be  equal  to  the  number  ment  of 

.   .  ,  .     ,  Senators  and 

of  inhabitants.  One  of  the  chief  abuses  of  the  Represen- 
"  gerrymander  "  is  the  making  of  unequal  dis-  tatives. 

tricts  for  partisan  purposes.  In  the  apportionment  the 
counties  are  generally  recognized  as  the  electoral  units, 
and  many  State  constitutions  forbid  that  counties  should 
be  divided  in  making  up  electoral  districts.  In  the  New 
England  States  the  towns  or  townships  were  generally 
recognized  as  the  electoral  units.  In  Connecticut  and  in 
other  of  the  older  States  provision  was  made  for  the 
representation  of  towns  rather  than  of  numbers  of  people. 
New  Haven,  with  one  hundred  thousand  population,  had 
no  more  representation  in  the  Legislature  of  Connecticut 
than  a  country  town  of  five  hundred  people.  The  recent 
constitution  of  that  State  has  remedied  this  defect. 

Representatives  and  Senators  are  usually  required  to 
live  in  the  districts  which  they  represent.  This  restriction 
tends  to  prevent  the  securing  of  the  best  ability  District  Resi_ 
in  the  State  for  service  in  the  legislature.     The  dence  is 

restriction  rests  on  custom  rather  than  on  law, 
but  it  is  all  the  harder  to  overcome  for  that  reason.  It 
has  been  suggested,  as  a  means  of  meeting  this  difficulty, 
that  fifteen  or  twenty  Senators  be  elected  from  the  State 
at  large,  to  be  voted  for  by  all  the  voters  of  the  State. 
This,  it  is  thought,  would  lead  to  the  choice  of  men  of 
ability  and  State  reputation. 

The  members  in  the  State  legislatures  vary  from  twenty- 
nine  in  the  whole  Legislature  of  Delaware  (nine  of  these 


35°  The  American  Republic 

being  in  the  Senate),  to  321  in  the  House  of  Represen- 
tatives in  New  Hampshire.  The  pay  of  members  varies 
from  one  dollar  per  day  in  Rhode  Island  to  fifteen  hun- 
dred dollars  a  year  in  New  York.  The  pay  is  usually 
a.  per  diem  of  from  four  dollars  to  eight  dollars  a  day  and 
mileage. 

Suffrage  is  a  subject  for  State  regulation.  Who  may 
vote  for  President  or  Congressman  depends  upon  the 
„  _  laws  of  the  State.     Whoever  is  entitled  by  the 

Suffrage  is  J 

Regulated  by  constitution  and  laws  of  the  State  to  vote  for 
state  aws.  members  of  the  most  numerous  branch  of  the 
State  legislature  may  vote  in  national  elections.1  Voting 
is  not  a  right  of  citizenship.  It  is  a  privilege  conferred 
by  the  State  on  those  whom  it  considers  fit.  Voters  and 
citizens  are  not  identical.  Many  citizens  are  not  voters ; 
many  voters  are  not  citizens.  Women  are  usually  not 
voters;  they  are,  of  course,  citizens.  While  the  States 
cannot  make  aliens  into  citizens,  they  may,  and  in  some 
cases  do,  make  voters  out  of  them.  In  Indiana  a  for- 
eigner is  required  to  live  but  one  year  in  the  State  to  be- 
come a  voter;  he  must  live  five  years  in  the  United  States 
in  order  to  become  a  naturalized  citizen. 

Though  the  regulation  of  suffrage  is  left  to  the  States 
the  qualifications  are  generally  uniform.  Manhood  suf- 
frage prevails,  as  a  rule,  throughout  all  the  States.  Some 
restrictions  have  been  imposed  lately  in  the  Southern 
Educational  States  by  requiring  certain  educational  and  tax- 
Tests,  paying  tests.  This  is  done  for  the  purpose  of 
excluding  colored  voters.  The  State  constitution  may 
require  that  before  one  may  vote  he  must  be  able  to  read 
the  Constitution  or  understand  a  section  of  it  when  it  is 
read  to  him.  Election  boards  composed  of  white  men  may 
The  "Grand-  decide  that  illiterate  whites  understand  the 
father  clause."  Constitution  while  illiterate  blacks  do  not.  A 
"grandfather  clause"    also   may   admit   illiterate  whites 

1  United  States  Constitution,  Art.  i.,  Sec.  2. 


The  States  and  their  Government     35 : 

while  excluding  illiterate  blacks,  by  providing  that  any 
one  whose  father  or  grandfather  was  a  citizen  of  the  State 
prior  to  1867  (the  date  of  the  Fourteenth  Amendment) 
may  be  relieved  from  the  suffrage  tests. 

Wyoming  and  Colorado  admit  women  to  the  general 
suffrage,  while  several  other  States  allow  women  to  vote  on 
several  local  matters  pertaining  to  taxation  and  education. 

Formerly,  property  qualifications  were  common  in  most 
of  the  States.  The  growth  of  the  democratic  spirit  has 
led  to  the  abandonment  of  all  such  qualifications.  The 
small  poll-tax,  or  nominal  property  tax  now  required  in 
some  of  the  States  does  not  deter  any  man  twenty-one 
years  of  age,  however  poor,  from  casting  his  ballot.  The 
tax  is  easily  taken  care  of  by  friends  or  interested  party 
managers. 

The  uniformity  in  suffrage  qualifications  in  the  States 
is  due  to  the  general  democratic  spirit  of  equality  prevail- 
ing throughout  the  Union,  and  partly  to  the  Suffrage  and 
requirements  of  the  Fourteenth  Amendment  to  the  Fourteenth 
the  Constitution  of  the  United  States.  This  men  ment* 
Amendment  provides  that  representatives  shall  be  appor- 
tioned among  the  several  States  according  to  their  re- 
spective numbers,  counting  the  whole  number  of  persons 
in  each  State.  But  when  the  right  to  vote  at  any  elec- 
tion for  President  or  Vice-President  or  Representatives 
in  Congress  is 

"denied  to  any  of  the  male  inhabitants  in  any  State,  being 
twenty-one  years  of  age  and  citizens  of  the  United  States  or 
in  any  way  abridged  except  for  participation  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be  re- 
duced in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State." 

This  is  mandatory  and  requires  that  the  State's  repre- 
sentation at  Washington  "shall  be  reduced  "  if  its  voters 


35 2  The  American  Republic 

are  disfranchised  for  other  reasons  than  crime.  This  holds 
out  an  inducement  to  the  State  to  preserve  a  wide  suffrage. 

The  executive  department  of  a  State  consists  of  the 
Governor  and  minor  administrative  officers,  such  as  the 
The  state  Lieutenant-Governor,  the  Secretary  of  State, 
Executive.  ^q  Auditor  of  State,  the  Treasurer  of  State, 
the  Attorney-General,  the  Superintendent  of  Public  In- 
struction or  the  Commissioner  of  Education,  Tax  and 
Benevolent  Boards,  and  other  administrative  agencies 
provided  for  by  law  and  appointed  by  the  Governor,  or 
elected  by  the  legislature. 

The  subordinate  State  officers,  like  the  Secretary  and 
Treasurer  of  State,  are  elected  and  hold  their  offices  in- 
The  Minor  dependent  of  the  Governor.  They  are  in  no 
Executive  way  related  to  him  like  a  Cabinet  or  council  of 
Not^sponsi-  advisers.  Their  work  is  not  political  and  their 
bie  to  the  offices  do  not  enable  them  to  determine  the 
ThirareNot  public  policy  of  the  State.  The  legislature  de- 
a  cabinet.  termines  the  policy  of  the  State,  while  each 
executive  officer  has  his  duties  defined  by  law  and  each  is 
directly  responsible  to  the  people.  The  governors  are 
now  elected  by  a  direct  vote  of  the  people,  while  formerly 
they  were  frequently  elected  by  the  legislature.  They 
hold  office  from  one  to  four  years  and  receive  salaries 
ranging  from  one  thousand  dollars  in  Michigan  to  ten 
thousand  dollars  in  New  York. 

It  is  the  Governor's  duty  to  see  that  the  laws  of  the 
State  are  faithfully  executed ;  to  convene  the  legislature 
Duties  of  the  when  occasion  requires;  to  recommend  desir- 
Govemor.  able  legislation ;  to  make  such  appointments 
as  the  constitution  and  the  laws  allow  him;  to  act  as 
commander  of  the  State  militia,  and  in  this  capacity  to 
repel  invasion  and  suppress  riot,  rebellion,  and  insurrec- 
tion ;  to  grant  reprieves  and  pardons ;  to  issue  writs  for 
the  election  of  Congressmen,  and  to  secure  by  extradition 
criminals  escaping  to  other  States. 


The  States  and  their  Government     353 

The  Governors  in  all  the  States  but  four  have  the  veto 
power.  In  some  of  the  States  this  may  be  overridden 
by  a  bare  majority  of  the  legislature,  but  even  Executive 
in  such  States  the  Governor's  veto  may  cause  Veto- 

the  delay  and  public  exposure  of  a  bad  measure  and  may 
even  defeat  it  entirely  upon  its  reconsideration.  The 
Governor's  reputation  depends  upon  his  use  of  the  veto. 

The  Governor  is  not  a  figure  of  great  political  impor- 
tance, by  no  means  as  important  as  in  former  days.  John 
Jay  resigned  the  Chief  Justiceship  of  the  United  Political  Im_ 
States  to  become  Governor  of  the  State  of  New  portance  of 
York,  and  frequently  the  governors  of  the  old 
commonwealths  looked  upon  their  office  as  equal  in  rank 
to  that  of  the  President.  The  Governor  represents  the 
official  dignity  of  the  State  on  state  occasions,  and  graces 
public  assemblies  by  his  presence  and  by  a  suitable  ad- 
dress. His  patronage  is  not  extensive  and  his  office  rep- 
represents  prestige  rather  than  power.  This  holds  good 
in  ordinary  times  when  the  Governor's  duties  are  not 
important,  but  in  times  of  strikes  and  riots  the  character 
of  the  Governor  becomes  of  vital  concern,  and  his  firm- 
ness, wisdom,  and  executive  energy  may  be  most  effective 
in  defending  and  promoting  the  welfare  of  the  State.  To 
be  the  governor  of  one  of  the  leading  States  sometimes 
places  a  man  in  line  for  political  promotion  and  may  lead 
to  his  selection  for  a  Cabinet  portfolio  or  to  his  nomina- 
tion for  the  Presidency  or  Vice-Presidency. 

The  Lieutenant-Governor  corresponds  to  the  Vice- 
President.  In  most  of  the  States  he  is  ex  officio  the  pre- 
siding officer  of  the  State  Senate  and  in  case  of  Lieutenant- 
the  death  or  disability  of  the  Governor,  the  Lieu-  Governor. 
tenant-Governor  succeeds  to  the  governorship.  Otherwise 
the  Lieutenant-Governor  has  no  functions  to  perform. 

The  impeaching  power  is  provided  for  in  the  State  con- 
stitutions as  in  that  of  the  United  States,  and  it  usually 
operates  after  the  same  fashion. 


354  The  American  Republic 

The  removing  power  is  vested  either  in  the  Governor 
or  legislature,  or  in  the  Governor  upon  an  address  of  the 
two  Houses  of  the  legislature. 

Each  State  has  its  judicial  system.  There  are  local 
County  and  Circuit  Courts  and  a  final  Court  of  Appeals 
The  state  or  Supreme  Court.  There  is  in  some  States 
judiciary.  an  intermediate  Appellate  Court  for  the  dis- 
position of  certain  cases  on  appeal.  In  earlier  days  the 
judges  were  generally  appointive  by  the  governors. 
Through  the  growth  of  the  democratic  spirit,  notable  in 
America  from  1815  to  i860,  the  constitutions  formed  in 
that  period  took  the  appointment  of  the  judges  from  the 
governors  and  made  the  judicial  office  elective  by  the 
people.  The  judges  are  now  elective  in  thirty-one 
States. 

The  judicial  tenure  in  the  States  has  also  become  more 
democratic.  Formerly  the  tenure  was  for  life  or  during 
judicial  good  behavior.      Judges  could  be  removed  only 

Tenures.  when  condemned  on  impeachment,  or  upon 
an  address  requesting  their  removal  presented  by  both 
Houses  of  the  legislature.  It  is  in  this  latter  way  that  the 
judges  are  still  removable  in  a  majority  of  the  American 
States.  This  also  is  the  process  of  judicial  removal  in 
England.  In  the  States  a  two-thirds  vote  of  the  two 
Houses  is  usually  required.  The  terms  of  the  judges  now 
vary  in  the  States  from  twenty-one  years  in  Pennsylvania 
to  two  years  in  Vermont,  averaging  about  eight  years. 

The  judges'  salaries  are  usually  low,  on  an  average 
about  four  thousand  or  five  thousand  dollars.  They 
judicial  range  from  two  thousand  dollars  in  Oregon  to 

Salaries.  ^en  thousand  dollars  in  New  York.     Such  low 

pay  will  make  it  impossible  to  secure  for  the  bench  first- 
rate  legal  ability,  or  it  will  tempt  the  judge  to  seek  to 
supplement  his  salary  by  other  and  questionable  means. 
It  is  frequently  asserted  that  popular  elections,  short 
terms,  and  low  salaries  have  had  a  very  positive  tendency 


The  States  and  their  Government     355 

to  lower  the  character  of  the  State  judiciary ;  that  popular 
elections  have  thrown  the  choice  of  judges  into  the  hands 
of  political  wire-pullers,  and  have  led  to  the  use 

f  f  Effects  of 

of  judicial  places  for  party  purposes ;  that  short  poPuiarEiec- 
terms  compel  the  judge  to  keep  on  good  terms  tion  and^  short 
with  the  political  manipulators,  and  he  can- 
not, therefore,  administer  the  law  without  fear  or  favor ; 
that  small  salaries  prevent  leading  lawyers  from  offering 
themselves  for  judicial  office,  when  the  office  promises  not 
one  tenth  the  pay  that  they  can  make  in  their  practice ; 
and  that  the  consequence  of  all  these  influences  is  that 
the  judges  in  many  States  are  much  inferior  to  the 
lawyers  who  practise  before  them. 

But  it  is  generally  not  true  that  the  most  astute  and 
money-making  lawyer  would  make  the  best  judge,  and 
in  most  of  the  States  good  men  can  be  induced  to  take 
the  judicial  offices  at  a  fair  salary.  Upon  their  transfer 
to  the  bench  they  administer  their  office  without  reference 
to  politics,  and  they  prove  to  be  judges  incorruptible  and 
above  reproach.  No  doubt  political  influences  do  in  a 
measure  affect  the  conduct  of  some  of  the  judges  of  the 
county  and  circuit  courts,  but  this  detracts  from  rather 
than  adds  to  their  popularity  with  the  people,  and  if  the 
fact  be  generally  recognized  it  may  decrease  rather  than 
increase  the  judge's  chance  for  renomination  and  re- 
election. Popular  election,  too,  may  have  its  compen- 
sating advantages,  in  restraining  autocratic  and  political 
conduct  on  the  part  of  the  judge. 

The  State  courts  have  the  same  power  to  declare  acts 
unconstitutional,  and  therefore  null  and  void,  that  the 
national  courts  have.      State  judges  are  sworn 

,        ,        ,        ^  .         .  c      i        o^  State  Judges 

to  support  both  the  Constitution  of  the  State     Pass  on  the 

and  of  the  United  States  and  they  may  declare   Constitution- 
,  _  •      •       i      ^     i    i       ality of  Acts 

an  act  of  Congress  unconstitutional.     Such  de- 
cision is  not  final,  of  course,  for  it  is  subject  to  review  in 
a  national  court.     It  may  be  reversed,  but  it  may  also  be 


356  The  American  Republic 

confirmed.  It  may  be  not  only  the  right  but  the  duty  of 
a  State  judge  to  declare  a  congressional  act  unconstitu- 
tional that  may  be  called  into  litigation  before  him.  It  is, 
however,  the  special  function  of  a  State  court  to  expound 
the  State  constitution,  and  if  an  act  of  the  State  legis- 
lature be  not  in  harmony  therewith  it  is  the  court's  duty 
so  to  declare.  As  in  the  United  States  courts,  the  State 
judges  pass  on  constitutional  questions  only  as  cases  arise 
in  suits  at  law.  This  may  cause  great  delay  in  determin- 
ing officially  the  validity  of  a  statute,  and  some  States,  in 
order  to  meet  this  difficulty,  require  the  Supreme  Courts 
to  deliver  an  opinion  on  the  constitutionality  of  an  act 
immediately  upon  its  passage,  or  as  a  condition  to  its 
passage.  Such  opinions,  however,  cannot  have  the  same 
weight  nor  binding  effect  as  a  final  official  decision  fol- 
lowing litigation,  and  a  judge  may  not  be  bound  in  his 
final  decision  on  a  case  by  his  previously  expressed  opin- 
ions. In  the  later  decision  of  the  case  the  judge  may  be 
influenced  by  the  practical  working  of  the  act  in  experi- 
ence and  by  the  able  arguments  of  capable  attorneys  in 
the  case  in  which  the  act  is  involved. 

Citizenship,  like  suffrage,  is  chiefly  a  State  matter. 
There  was  no  clear  nor  generally  accepted  definition  of 
citizenship  a  American  citizenship  until  after  the  Civil  War, 
state  Matter,  when  the  Fourteenth  Amendment  declared : 
Fourteenth  "  All  persons  born  or  naturalized  in  the  United 
Amendment.  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein  they 
reside. 

This  amendment  recognizes  two  separate  citizenships : 
a  citizenship  of  the  States  and  a  citizenship  of  the  United 
States,  and  it  makes  State  citizenship  derivative  from 
national  citizenship.  The  prevailing  view  formerly  was 
that  national  citizenship  was  dependent  on  and  derived 
from  State  citizenship ;  that  one  could  become  a  citizen 
of  the  United  States  only  as  a  consequence  of  being  a 


The  States  and  their  Government     357 

citizen  of  some  State  or  Territory  of  the  Union ;  that 
State  citizenship  was  the  primary  fact  while  National 
citizenship  was  only  secondary  and  consequential.  Cal- 
houn gave  clear  expression  to  this  view : 

"  A  citizen  at  large,  one  whose  citizenship  extends  to  the 
entire  geographical  limits  of  the  country,  without  having  a 
local  citizenship  in  some  State  or  Territory,  a  sort  of  citizen 
of  the  world,  would  be  a  nondescript; — not  an  individual  of 
such  description  can  be  found  in  the  whole  mass  of  our  popu- 
lation. Every  citizen  is  a  citizen  of  some  State  or  Territory, 
and  as  such,  under  an  express  provision  of  the  Constitution,  is 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States;  and  it  is  in  this  and  in  no  other  sense  that  we 
are  citizens  of  the  United  States."  ' 

This  was  the  State  rights's  view.  It  received  judicial  sanc- 
tion in  the  Dred  Scott  decision.  Each  citizenship,  State 
and  national,   had  its  separate  privileges  and 

.    .  TTT1  .,  ,,  •  ,      .   -  The  Dred 

immunities.  While  all  national  citizens  must  scott  Decision 
first  be  State  citizens  it  did  not  follow  accord-      on  citizen- 

ship. 

ing  to  this  view  that  State  citizenship  neces- 
sarily carried  with  it  the  privileges  of  national  citizenship. 
This  was  one  of  the  main  points  at  issue  in  the  Dred  Scott 
case.  Was  Dred  Scott  a  citizen  of  the  United  States, 
entitled  to  sue  in  the  national  courts?  Could  one  of 
African  descent  and  slave  birth  become  a  citizen  of  the 
United    States   merely  by  his  being   made  a 

r        1  <-  rr^,  o  Ma?  a  State 

citizen  of  one  of  the  States?  I  he  Supreme  Make  a  Man  a 
Court  in  the  Dred  Scott  case  denied  the  privi-  Citifnof  th« 

x  United  States  ? 

leges  of  national  citizenship  to  negroes.  The 
fact  that  they  had  been  made  citizens  in  some  of  the 
States  did  not  work  their  national  citizenship.  Chief 
Justice  Taney  asserted  that  the  rights  of  citizenship 
which  a  State  may  confer  within  its  own  limits  should 
not  be  confounded  with  the  rights  of  citizenship  as  a 

'Calhoun's  speech  on  "  The  Force  Bill,"  Works,  vol.  ii.,  p.  242. 


358  The  American  Republic 

member  of  the  Union.  One  may  have  all  the  rights  and 
privileges  of  a  citizen  of  a  State  and  yet  not  be  entitled 
to  the  rights  and  privileges  of  a  citizen  in  any  other  State, 
or  to  the  rights  of  United  States  citizenship.  Each  State 
may  confer  its  civic  rights  and  privileges  upon  an  alien  or 
on  any  one  it  thinks  proper,  but  these  rights  will  be  re- 
stricted to  the  State  which  gave  them.  No  State  since 
the  adoption  of  the  Constitution  can,  by  naturalizing  an 
alien,  invest  him  with  the  rights  and  privileges  of  Federal 
citizenship.  The  black  man  could  not  be  made  a  citizen 
of  the  United  States  through  the  action  of  a  single  or  of 
several  States ;  it  had  to  be  done,  if  done  at  all,  through 
the  Constitution.  The  dissenting  opinion  of  Justice  Cur- 
tis agreed  in  the  view  that  each  State  was 
sen7hiStheS~  free  to  determine  for  itself  what  persons  born 
Dred  Scott  or  naturalized  within  its  limits  should  be  citi- 
zens of  such  State.  It  differed  in  asserting 
that  State  citizenship  resulted  in  National  citizenship.  If 
the  negro  were  made  a  citizen  in  any  State  he  thereby 
became  a  citizen  of  the  nation  with  all  the  privileges  of 
Federal  citizenship.  Both  Taney  and  Curtis  held  that 
citizenship  of  the  United  States  was  dependent  upon  and 
proceeded  from  citizenship  of  the  State;  the  difference 
was  as  to  the  power  of  the  State  to  invest  persons,  like 
negroes,  not  generally  conceded  the  rights  of  citizenship, 
with  the  citizenship  of  the  United  States.  Taney  denied 
that  National  citizenship  was  a  necessary  consequence  of 
State  citizenship. 

The  Fourteenth  Amendment  has  removed  all  ground 
of  dispute  and  doubt.  It  tells  who  are  citizens  of  the 
United  States  and  of  the  States  wherein  they  reside, — 
"All  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof."  The  Four- 
teenth Amendment  then  goes  on  to  say,  "Nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  pro- 
perty   without    due    process    of   law,    nor    deny    to    any 


The  States  and  their  Government     359 

person    within    its   jurisdiction    the  equal  protection  of 
the  laws." 

Before  the  Civil  War  the  fundamental  civil  rights  of 
the  citizen  were  exclusively  within  the  control  and  pro- 
tection of  the  States.  Were  they  now  to  come  for  review 
within  the  operation  of  the  United  States  courts?  Were 
civil  rights  nationalized?  In  saying  that  no  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges and  immunities  of  citizens  of  the  United  States  the 
Fourteenth  Amendment  did  not  intend  to  transfer  the 
security  and  protection  of  all  the  fundamental The  Protection 
civil  rights  of  the  citizen  from  the  States  to  the  of  the  citizen 
Federal  Government.  The  powers  of  the  Na-  R|™ 
tional  Government  over  civil  rights  were  not  state  Func- 
increased.  Of  the  two  citizenships — State  and 
National — the  amendment  recognized  that  each  had  its 
corresponding  and  different  privileges  and  immunities. 
What  were  the  privileges  and  immunities  of  State  citizen- 
ship? Those  which  are  fundamental,  which  touch  the 
national  and  inalienable  rights  of  all  citizens, — the  right 
to  life,  liberty,  and  property,  the  rights  which  have  at  all 
times  been  enjoyed  by  citizens  of  the  several  States  an- 
terior to  all  their  constitutions,  State  or  National,  and 
which  these  constitutions  were  designed  to  protect  and 
secure.  The  protection  of  these  rights  was  not  transferred 
by  the  war  amendments  to  the  Congress  of  the  United 
States.  If  Congress  had  to  supervise  and  guard  these 
rights,  it  might  pass  laws  in  advance  limiting  and  restrict- 
ing the  exercise  of  legislative  power  by  the  State.  ' '  Such 
a  construction  would  constitute  this  court  a  TheSupreme 
perpetual    censor  upon   all   legislation   of   the         Court  on 

r      r  ,      .    ,  ,     ,      .  .    .  Citizenship 

States,  on  the  civil  rights  of  their  own  citizens,  and  the  Four. 
"  with  authority  to  nullify  such  as  it  did  not  ap-  teenth  Amend- 

J  J  ment,  in  the 

prove.  The  effect  would  be  to  fetter  and  slaughter- 
degrade  the  State  governments  by  subjecting  House  Cases- 
them  to  the  control  of  Congress,  to  change  radically  the 


360  The  American  Republic 

whole  theory  of  the  relations  of  the  State  and  Federal 
Governments  to  each  other  and  of  both  these  govern- 
ments to  the  people.1 

What  are  the  privileges  and  immunities  of  the  citizen 
of  the  United  States  which  the  States  are  forbidden  to 
abridge?  Those  which  are  within  the  sphere  of  the 
United  States  Government. 

Free  access  to  the  seat  of  government,  to  share  its 
offices,  to  administer  its  functions. 

Free  access  to  its  ports,  subtreasuries,  land  offices,  and 
courts. 

Protection  to  life,  liberty,  and  property  on  the  high  seas 
and  in  foreign  countries,  through  diplomatic  agencies. 

To  peaceably  assemble  and  petition  for  redress  of 
grievances. 

The  writ  of  habeas  corpus. 

To  use  the  navigable  waters  of  the  United  States. 

To  become  a  citizen  of  any  one  of  the  States  by  a  bona 
fide  residence  therein.' 

One  born  in  the  United  States  and  subject  to  its  laws 
is  a  citizen  of  the  United  States  and  of  the  State  where  he 
lives.  Those  naturalized  by  the  laws  of  the  United  States 
are  national  citizens  and  citizens  of  their  respective  States. 
If  a  citizen  of  one  State  moves  to  another,  he  becomes 
by  that  act  a  citizen  of  the  new  State.  He  does  not 
carry  with  him  the  privileges  and  immunities  conferred 
by  the  former  State,  but  the  new  State  must  allow  him 
all  the  rights  and  privileges  it  allows  its  own  citizens. 
A  citizen  of  a  State  is  always,  or  is  soon  to  be,  a  citizen 
of  the  United  States,  but  a  person  may  be  a  citizen  of  the 
United  States  without  being  a  citizen  of  one  of  the  States, 
as  he  may  have  his  residence  in  Washington  City  or  in 
the  Territories. 

1  Chief  Justice  Chase,  United  States  Supreme  Court  decision  in  the 
Slaughter- House  cases. 

9  The  Supreme  Court  in  the  Slaughter-House  cases. 


The  States  and  their  Government     361 

Thus  we  see  the  State  is  still  the  guardian  of  the  funda- 
mental civil  rights  of  the  citizen,  as  well  as  the  determiner 
in  the  largest  extent  of  the  citizen's  political  privileges. 
In  the  American  system  the  State  is  an  ancient  and  hon- 
orable body  politic,  and  its  legitimate  rights  and  privi- 
leges will  continue  to  be  jealously  and  carefully  guarded 
by  all  parties  in  the  State. 


T 


CHAPTER   VIII 

THE   TERRITORIES   AND   THEIR   GOVERNMENT 

HE  Territories  of  the  United  States  may  be  grouped 

as  follows : 


1.  Three  Organized  Territories  :  Area  in  Sq.  Miles. 

Arizona 113,020 

New  Mexico 122,580 

Oklahoma 39.030 

2.  Two  Unorganized  Territories  : 

Alaska 531,000 

Indian  Territory S1^00 

3.  The  District  of  Columbia 60 

4.  The  Island  Possessions  : 

Hawaiian  Islands 6,640 

Porto  Rico 3.60O 

The  Philippines1 1 15,300 

The  Organized  Territories  have  a  form  of  government 
provided  for  them  by  Congress.  Congress  has  extended 
to  them  the  provisions  and  guarantees  of  the  Constitu- 
tion. Therefore  the  fundamental  law  for  their  govern- 
ment may  be  said  to  consist  of  (a)  the  United  States 
Constitution  and  (b)  the  Organizing  Act  of  Congress. 

The  act  of  Congress  by  which  a  Territory  is  organized 
bears  to  the  people  of  a  Territory  the  relation  that  a  State 
„.    „  constitution  bears  to  the  people   of  a   State. 

The  Orgamz-  L        ± 

ingActfor  This  fundamental  law,  however,  was  not  or- 
a  Territory.  dained  or  adopted  by  the  inhabitants  of  a 
Territory,  nor  is  it  within  their  control.      It  was  created 

1  Guam,  three  Samoan  Islands,  and  the  Danish  West  Indies  are  other 
island  possessions.  The  treaty  for  the  Danish  islands  is  still  pending  in 
Denmark. 

362 


The  Territories  and  their  Government  363 

by  Congress,  and  it  may  be  amended  or  repealed  by  Con- 
gress. Its  importance  consists  in  that  it  defines  the 
limits  of  the  Territory  and  prescribes  the  forms,  rules, 
and  principles  for  the  conduct  of  its  government.  It 
therefore  partakes  of  the  nature  of  a  constitution.  The 
famous  Ordinance  of  1787  was  the  forerunner  of  all  these 
organizing  acts.  That  Ordinance  was  a  great  The  Ordinance 
and  worthy  constitution  for  the  Territories  for  of  I787- 

which  it  was  made,  and  to  originate  its  provisions  re- 
quired legal  ability  and  constitutional  statesmanship  of  a 
high  order.  This  great  Organizing  Act  became  famous 
for  several  reasons : 

1.  It  gave  a  form  of  government  to  the  Northwest 
Territory  that  became  a  precedent  for  time  to  come. 

2.  It  guaranteed  to  the  Territory  free  soil. 

"  Neither  slavery  nor  involuntary  servitude,  except  in  pun- 
ishment of  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  ever  exist  in  said  territory." 

3.  It  guaranteed  free  religion. 

"  No  person  demeaning  himself  in  an  orderly  manner  shall 
ever  be  disturbed  or  molested  on  account  of  his  mode  of  wor- 
ship or  religious  belief." 

4.  It  guaranteed  free  schools. 

"  Religion,  morality,  and  knowledge  being  essential  to  good 
government  and  the  happiness  of  mankind,  schools  and  the 
means  of  education  shall  be  forever  encouraged." 

5.  It  guaranteed  civil  liberty. 

The  rights  guaranteed  in  the  Virginia  Constitutional 
Bill  of  Rights  of  1776  and  in  the  Massachusetts  Constitu- 
tion of  1780,  coming  from  the  old  "English  Bill  of 
Rights"  of  1688,  were  incorporated  in  this  great  Terri- 
torial Act.     Free  speech,  a  free  press,  free  assembly,  free 


364  The  American  Republic 

petition,  free  trial  by  a  jury  of  his  peers,  the  habeas  corpus, 
— to  all  these  common  rights  of  the  freemen  every  inhab- 
itant of  the  Northwest  Territory  was  to  be  guaranteed. 

These  wise  and  beneficent  provisions  of  the  Ordinance 
of  1787  have  been,  in  the  main,  transplanted  to  our  new 
Territories  as  these  have  been  from  time  to  time  organ- 
ized for  civil  government  by  the  Congress  of  the  United 
States.  While  these  great  guarantees  were  not  secured 
in  law  by  the  Ordinance  of  1787  except  as  they  were  after- 
wards incorporated  in  the  constitutions  and  laws  of  the 
States  subsequently  erected  in  this  territory,  the  Ordi- 
nance did  much  to  determine  the  character  of  the  people 
who  settled  in  the  Northwest,  and  was  an  effectual  in- 
fluence in  committing  those  States  to  freedom  and  free 
institutions. 

The  later  organizing  acts  have,  as  a  rule,  attracted  very 
little  attention  in  our  history,  though  they  are  of  the 
utmost  importance  both  from  the  point  of  view  of  their 
subject-matter  and  from  the  interests  of  the  people  for 
whom  they  provided  their  first  and  original  civil  govern- 
ment. 

In  organizing  the  Territories,  Congress  has  always  had 
in  view  the  admission  of  the  Territories  as  States  of 
^   „  the  Union.    This  was  the  original  purpose  in  the 

The  Territory  °  x        * 

Looks  Forward  first  acquisition  of  territory,  even  before  the 
to  statehood.   adoption  of  the  Constitution.    In  the  Treaty  of 

1782,  by  which  our  independence  was  recognized,  in  ad- 
dition to  the  original  thirteen  States  the  territory  west  of 
the  Alleghany  Mountains,  east  of  the  Mississippi,  south 
of  the  Great  Lakes,  and  north  of  the  thirty-first  degree  of 
north  latitude,  was  recognized  as  belonging  to  the  Con- 
federated States.  But  this  territory  belonged  to  certain 
States,  not  to  the  United  States.  Maryland  refused  to 
ratify  the  old  Articles  of  Confederation  until  guarantees 
were  given  that  this  territory  would  be  ceded  to  the 
General  Government.     In  the  famous  Resolution  of  1780, 


The  Territories  and  their  Government  365 

by  which  the  old  Continental  Congress  sought  to  induce 
the  claimant  States  (Massachusetts,  Virginia,  New  York, 
Connecticut),  to  cede  to  the  General  Government  the 
territory  which  they  claimed  in  the  West,  Congress  said  : 

"  The  lands  which  may  be  ceded  to  the  United  States  by 
any  particular  State  shall  be  disposed  of  for  the  common 
benefit  of  the  United  States  and  be  settled  and  formed  into 
distinct  republican  States,  which  shall  become  members  of  the 
Federal  Union  and  have  the  same  rights  of  sovereignty,  free- 
dom, and  independence  as  the  other  States." 

In  all  the  territory  since  acquired  by  treaty,  save  that 
of  Alaska  and  the  islands  lately  acquired  from  Spain,  it 
was  agreed  that  the  territory  so  acquired  should  be  in- 
corporated into  the  Union  as  soon  as  possible,  and  that 
in  the  meantime  the  civil  rights  of  the  inhabitants  should 
be  guaranteed.  This  was  the  case  with  Louisiana  in 
1803,  with  Florida  in  1819,  and  with  the  Mexican  cessions 
in  1848,  and  the  Alaskan  Treaty  guaranteed  the  rights  of 
citizenship  to  the  inhabitants  of  the  transferred  territory. 

The  Government  of  an  organized  Territory  Territorial 
has  usually  provided  for  three  departments J :  Government. 
I.  Executive;  2.  Legislative;  3.  Judicial. 

1.  The  executive  consists  of  a  Governor  and  other  offi- 
cers appointed  for  four  years  by  the  President  of  the 
United  States,  confirmed  by  the  Senate.     The 

^  r  .       The  Executive. 

(jovernor    performs    the    ordinary    executive 
duties,  to  see  that  the  laws  of  the  United  States  and  of 
the  Territory  are  faithfully  executed.      He  generally  has 
a  veto  on  legislative  acts,  which  may  be  overridden  by  a 
two-thirds  vote  of  each  House. 

The  other  executive  officers  of  the  Territory,  the  Secre- 
tary, Treasurer,  Auditor,   and  Superintendent  of  Public 

1  This  description  applies  to  the  customary  governments  in  the  organized 
Territories  in  the  western  part  of  the  United  States.  The  Governments 
for  Porto  Rico  and  the  Philippines  are  separately  described.    See  pp.  374,  376. 


366  The  American  Republic 

Instruction,  are  also  appointed  by  the  President  and  con- 
firmed by  the  Senate,  and,  like  the  Governor,  are  subject 
to  the  President's  removal. 

2.  The  legislature  is  composed  of  two  Houses,  a  Senate 
of  twenty-four  persons,  and  a  House  of  sixty-two  per- 
The  sons.1  Each  House  is  elected  by  the  voters  of 
Legislature.  tne  Territory  for  a  term  of  two  years,  and  the 
legislature  sits  but  once  in  that  period.  The  legislative 
sessions  are  limited  to  sixty  days  and  the  salary  of 
a  member  is  four  dollars  a  day.  The  Houses  work  by 
the  Committee  System. 

The  suffrage  is  regulated  by  law  made  in  the  Territory, 
but  Federal  law  requires  that  each  member  of  the  Terri- 
torial legislature  shall  reside  in  the  district  which  he 
represents. 

The  legislative  power  of  every  Territory  is  as  extensive 
as  that  of  a  State, — extending  "  to  all  rightful  subjects  of 
legislation  not  inconsistent  with  the  Constitution  and  laws 
of  the  United  States."  This  includes,  of  course,  the 
organizing  act  creating  the  Territory.  "No  law  shall  be 
passed  interfering  with  the  primary  disposal  of  the  soil ; 
no  tax  shall  be  imposed  on  the  property  of  the  United 
States,  nor  shall  the  land  or  other  property  of  non-resi- 
dents be  taxed  higher  than  the  lands  or  other  property 
of  residents."  a  The  legislative  power  of  the  Territories 
is  also  limited  by  the  important  right  of  Congress  to 
modify  or  annul  at  any  time  any  Territorial  law.  In  the 
organization  of  some  Territories  the  organizing  acts  have 
directed  that  all  Territorial  acts  be  submitted  to  Congress 
— to  be  of  no  effect  if  disapproved.  This  over-control  of 
Congress  is  not  usually  exercised. 

3.  The  judiciary  consists  of  three  or  more  judges  of  a 
Supreme  Court,  appointed  for  four  years  by  the  President 
with  the  consent  of  the  Senate,  together  with  a  United 

1  Oklahoma  has  thirteen  in  the  Upper  House  and  twenty-six  in  the  Lower. 
s  United  States  Statutes,  1878. 


The  Terrirtoies  and  their  Government  367 

States  District  Attorney  and  a  United  States  Marshal. 
The  salary  of  the  judges  is  three  thousand  dollars.  These 
officers  administer  both  the  Federal  and  local  The  Territorial 
law.  The  Territorial  courts  are  not  a  part  of  Judiciary, 
the  Federal  Judiciary;  the  Territorial  legislature  regulates 
their  practice  and  procedure.  The  Judiciary  of  a  Terri- 
tory, like  its  legislature,  has  always  been  established  by 
a  law  of  Congress.  They  are  legislative  courts  purely ; 
they  are  not  constitutional  courts  in  which  the  judicial 
power  conferred  by  the  Constitution  on  the  General  Gov- 
ernment can  be  deposited.  It  has  been  held  that  a  judge 
of  the  District  Court  of  Alaska  was  not  a  judge  contem- 
plated by  the  Constitution  and  was  subject  to  removal  by 
the  President.1  If  he  were  a  constitutional,  not  a  legis- 
lative, judge,  his  tenure  would,  of  course,  be  during  good 
behavior. 

The  Territories  do  not  take  part  in  presidential  elec- 
tions, nor  do  they  send  Senators  to  Congress.  They  do 
not  take  part  in  governing  the  United  States.  Each 
Territory  may  send  a  delegate  to  Congress,  and  he  is 
allowed  a  seat,  and  he  may  speak,  introduce  measures, 
and  make  motions,  but  he  may  not  vote.  The  right  of 
a  vote  in  Congress  depends  on  the  Constitution,  and  that 
right  is  conferred  upon  States,  not  upon  Territories. 

A  Territory  is  a  State  in  the  making.  It  is  organized 
with  the  purpose  of  making  it  into  a  State.  When  the 
Territory  has  a  population  equal  to  that  of  the  average 
congressional  district  the  presumption  is  in  favor  of  its 
statehood,  and  it  should  be,  and  will  be  likely  to  be,  ad- 
mitted unless  there  are  specific  objections.  A  Territory 
may  be  kept  out  for  a  while  for  special  public  reasons, 
as  in  the  case  of  Missouri  on  account  of  slavery,  and  of 
Utah,  later,  on  account  of  polygamy.  Utah's  admission 
was  postponed  long  after  it  had  sufficient  population. 
A  Territory  may  be  kept  out  for  party  reasons,  as  lately 
1  McAllister  vs.  United  States,  141  United  States,  174. 


368  The  American  Republic 

in  the  case  of  Oklahoma,  whose  silver  complexion  was 
objectionable  while  the  silver  issue  was  prominent;  or 
a  Territory  may  be  brought  in  for  special  party  and 
political  reasons,  as  in  the  case  of  Nevada,  which  was 
admitted  as  a  State  (1864),  when  its  population  was 
only  about  twenty  thousand,  for  the  sake  of  getting 
its  vote  in  favor  of  the  Thirteenth  Amendment.  Con- 
gress has  absolute  discretion  and  power  in  the  matter  and 
may  admit  or  refuse  to  admit  as  it  pleases.  Congress  is 
bound  in  the  matter  only  by  its  sense  of  justice  and  fair 
play,  by  the  principles  and  practices  of  the  past,  and  by 
public  opinion. 

"  New  States  may  be  admitted  by  the  Congress  into  this  Union; 
but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  State  ;  nor  shall  any  State  be  formed  by  the  junction 
of  two  or  more  States,  or  parts  of  States,  without  the  consent  of 
the  legislatures  of  the  States  concerned,  as  well  as  of  the  Con- 
gress.'" ' 

How  is  a  Territory  made  into  a  State?  How  do  Terri- 
tories pass  into  statehood? 

When  a  Territory  has  a  population  equal  to  that  of  an 
average  congressional  district,  its  legislature  will  "me- 
morialize," or  petition,  Congress  to  pass  what 

How  a  Tern-  r  «*  * 

tory  Becomes  is  called  an  "Enabling  Act  for  the  Territory, 
a  state.  jf   congress  js   favorably  disposed  to  the  re- 

quest it  passes  such  an  act.  This  act  is  to  "enable,"  or 
authorize  the  people  of  the  Territory  to  form  a  State 
constitution.  The  act  will  either  provide  for  a  Terri- 
torial constitutional  convention,  or  it  will  authorize  the 
The  Enabling  Territorial  legislature  to  provide  for  one.  The 
Act-  Enabling   Act  may  also   prescribe   conditions 

to  be  fulfilled  by  the  new  constitution.  In  accordance 
with  the  law  of  Congress  or  of  the  Territorial  legislature, 
the  people  of  the  Territory  elect  delegates  to  a  constitu- 

1  Art.  IV.,  Sec.  3,  CI.  I. 


The  Territories  and  their  Government  369 

tional  convention,  this  body  frames  a  constitution,  and 
submits  it  to  the  voters  of  the  Territory.  If  adopted  by 
the  voters,  it  is  then  submitted  for  the  approval  of  Con- 
gress and  if  the  constitution  is  accepted  by  that  body,  if 
the  new  State  constitution  provides  for  a  Republican  form 
of  government  and  the  conditions  suggested  by  Congress 
are  complied  with,  the  State  is  declared  a  member  of  the 
Union  by  a  formal  resolution,  and  Representatives  are 
apportioned  to  the  new  State.  The  Territory  has  then 
entered  fully  into  the  enjoyment  of  self-government  on 
an  equal  footing  with  all  the  other  States,  and  the  Na- 
tional Government  has  no  further  power  to  interfere  in 
its  "domestic  concerns."  While  the  process  described 
above  is  the  usual  one  for  making  a  State  out  of  a  Terri- 
tory, it  has  frequently  happened  that  the  Territory  has 
not  awaited  an  "Enabling  Act  "  of  Congress,  but  it  has 
itself  taken  the  initiative  in  calling  a  constitutional  con- 
vention in  the  Territory.  With  the  constitution  already 
in  hand  the  Territory  applies  to  Congress  for  admission. 
This  is  true  of  States  formed  by  the  division  of  other 
States,  as  in  the  case  of  Maine,  Kentucky,  and  West  Vir- 
ginia, and  it  was  likewise  the  experience  of  Michigan  and 
California,  on  account  of  local  conditions. 

It  was  formerly  contended  that  a  new  incoming  State 
should  be  left  free  to  make  its  own  constitution  in  its  own 
way ;  that,  while  Congress  could  admit  or  refuse  imposing 
to  admit,  yet  if  it  chose  to  admit  it  must  Conditions  on 
admit  into  a  union  of  equal  States,  and  to 
impose  conditions  on  an  incoming  State  was  unconsti- 
tutional. This  was  the  constitutional  question  involved 
in  the  discussion  over  the  admission  of  Missouri.  Con- 
ditions not  imposed  on  the  original  States  could  not  be 
imposed  on  new  States.  As  between  the  States  and 
the  Central  Government  all  powers  were  distributed  by 
the  Constitution.  For  Congress  to  assume  to  redis- 
tribute  these  powers, — to  say  that  a  new  State  should 


37°  The  American  Republic 

be  limited  in  a  way  that  the  Constitution  did  not  say, 
— was  to  assume  a  sovereignty  that  did  not  belong  to 
it,  that  would  turn  our  Federal  into  a  centralized  system.1 
But  late  Enabling  Acts  have  required  the  Territorial  con- 
ventions to  make  "by  ordinance  irrevocable  without  the 
consent  of  the  United  States  and  the  people  of  the  United 
States,  provisions  for  perfect  religious  toleration  and  for 
the  maintenance  of  public  schools  free  from  sectarian 
control ;  and  that  polygamous  or  plural  marriages  are  for- 
ever prohibited."  2  No  such  conditions  were  imposed  on 
the  original  States. 

Whether  such  conditions  are  inviolable,  and  whether 

a  new  State,  when  it  is  once  safely  in  the  Union,   may 

repeal    these    ordinances    which    it   has   been 

May  a  State  .  .  ,  ... 

violate  the  required  to  pass,  and  disregard  the  conditions 
Terms  of  its     Qf  jts  admission,  are  academic  questions  which 

Admission?  .,..,.  .  , 

have  been  considerably  discussed,  but  they 
have  not  yet  had  practical  application  in  experience. 

While  Congress  has  never  attempted  to  interfere  with 
the  States  in  making  whatever  alterations  of  their  consti- 
tutions the  States  see  fit,  such  an  act  on  the  part  of  a  new 
State  would  be  a  serious  breach  of  faith.  The  people  of 
the  United  States  would  have  it  in  their  power  to  punish 
such  a  disregard  of  obligations  by  shutting  the  doors  of 
the  Senate  and  House  of  Representatives  against  the 
Representatives  elected  by  the  people  of  the  offending 
State,  and  by  denying  them  "a  voice  in  the  councils  of 
the  nation  because  they  had  acted  in  bad  faith  and  vio- 
lated their  solemn  agreement  by  which  they  succeeded  in 
getting  themselves  into  the  condition  of  a  State." 

Our  political  theory  regards  all  citizens  as  equal,  and 

1  See  Pinkney's  speech  on  admission  of  Missouri,  Von  Hoist's  Constitu- 
tional History  of  the  United  States,  vol.  i.  ;  Burgess's  Middle  Period,  pp. 
86-87. 

2  Enabling  Act  for  Utah. 

3  Brief  of  Judge  Jeremiah  M.  Wilson,  in  advocating  the  admission  of 
Utah,  1S87. 


The  Territories  and  their  Government  37 l 

as  equally  entitled  to  a  voice  in  their  government,  and  in 
the  days  of  1776  we  asserted  that  there  must  be  "no  tax- 
ation without  representation."  But  the  peo-  The  Tem- 
ple of  a  Territory  are  taxed  by  national  laws  in torles  and Tax" 

-1  i-iii  •  ation  without 

the  making  of  which  they  have  no  voice.  Represen- 
They  may  be  governed  entirely  without  their  tation. 

consent.  While  in  a  Territorial  condition  the  people 
of  a  Territory  can  have  no  voice  in  determining  their 
own  fundamental  law.  The  only  way  in  which  they 
can  have  any  voice  in  their  government  is  through 
the  organization  and  usages  of  the  national  political 
parties.  The  Territorial  people  are  under  the  absolute 
governing  control  of  Congress.  The  only  way  in  which 
they  can  come  into  self-government,  so  that  American 
principles  can  be  applied  to  them,  is  by  the  process  of 
statehood,  or  by  a  liberal  Organizing  Act,  by  which  Con- 
gress consents  to  leave  to  them  a  large  measure  of  self- 
government.  It  is  by  this  means  and  by  the  fact  that  it 
has  always  been  our  policy  and  intention  to  admit  the 
Territories  to  statehood  as  soon  as  practicable  and  safe, 
that  we  "save  our  face  "  in  our  profession  of  adherence 
to  "taxation  by  representation"  and  "government  by 
consent." 

Alaska  and  the  Indian  Territory  represent  the  "Un- 
organized Continental  Territories."     They  are    Unorganized 
not  allowed  local  self-government,  but  are  gov-      Continental 
erned  from  Washington,  somewhat  like  Crown 
Colonies  of  Great  Britain. 

The  civilized  tribes  of  Indians  in  the  Indian  Territory 
have  maintained  local  governments  of  their  own,  with 
elective  legislatures  and  executive  officers ;  but  Government  of 
it  was  intended  that  the  functions  of  these  the  Indian 
governments  should  be  limited  to  the  Indians, 
an  arrangement  secured  by  treaties  with  the  tribes,  in 
which  each  Indian  nation  is  treated  by  our  Government 
as  a  tribal  whole.      Each  tribe  was  looked  upon  as  capable 


37 2  The  American  Republic 

of  managing  its  own  affairs  and  governing  itself.  Our 
treaties  have  regarded  the  Indians,  each  tribe  for  itself, 
as  distinct,  independent  political  communities,  capable 
of  maintaining  the  relations  of  peace  and  war,  of  being 
responsible  in  their  political  character  for  any  violation  of 
their  engagements,  or  for  any  aggression  committed  on 
the  citizens  of  the  United  States  by  any  individual  of 
their  community.  But  an  Indian  tribe  occupying  land 
within  the  jurisdiction  of  the  United  States  is  not  a 
"foreign    State."      They    are  "domestic,   de- 

Domestic,  °  J 

Dependent  pendent  nations."  They  occupy  a  territory  to 
Nations.  which  we  assert  a  "  title  independent  of  their 
will,  which  must  take  effect  in  point  of  possession  when 
their  right  of  possession  ceases.  Meanwhile  they  are  in 
a  state  of  pupilage.  Their  relation  to  the  United  States 
resembles  that  of  a  ward  to  his  guardian."  ' 

Under  this  "state  of  pupilage,"  our  Indian  treaties 
placed  the  Indians  under  the  protection  of  the  United 
States,  admitted  the  supremacy  of  the  United  States, 
provided  for  its  interference  in  certain  cases,  recognized 
the  Indians'  right  to  their  lands  of  described  boundaries, 
made  certain  provisions  for  their  needs,  and  gave  to  the 
United  States  the  right  to  regulate  their  trade. 

This  tribal  relation,  this  wardship  and  state  of  pupilage, 
is  now  being  broken  up.  Under  it  there  has  been  no 
Disappearance  uniform  government  for  the  Indian  Territory, 
of  the  Tribal    Oklahoma  was  set  off  with  a  separate  Territorial 

Relations.  ,  0  <t-.i  i  •,  -l        1 

government  in  189Q.  I  he  whites,  by  lease 
from  the  Indians  and  by  bribery  and  fraud  or  intermar- 
riage, obtained  citizenship  and  ownership  of  land  within 
the  Indian  nations,  until  finally  the  whites  far  outnum- 
bered the  Indians.  In  1898,  Congress  decided  to  change 
entirely  the  basis  of  government  for  the  Indian  Territory 
and  to  this  end  adopted  a  code  of  laws  for  the  Territory. 

1  Chief  Justice  Marshall,  in  Cherokee  Nation  vs.  Georgia.  1831,  5 
Peters,  1. 


The  Territories  and  their  Government  373 

United  States  courts  were  established  within  the  Indian 
Territory,  and  the  legislation  of  the  tribes  was  subject  to 
approval  by  the  President.  Provision  is  made  for  the 
allotment  of  land  in  severalty  under  United  States  control 
and  for  the  early  and  entire  cessation  of  Indian  govern- 
ment. In  proper  time  the  usual  Territorial  government 
will  be  provided. 

Alaska,  purchased  from  Russia  in  1867,  has  an  area  of 
531,000  square  miles,  with  a  population  of  44,000.  Con- 
gress, by  Act  of  June  6,  1900,  provided  a  civil  Alaska  and  its 
code  for  Alaska.  The  executive  power  is  vested  Government. 
in  a  governor  appointed  by  the  President,  with  the  con- 
sent of  the  Senate,  for  four  years.  The  Surveyor-General, 
who  is  ex-officio  Secretary,  United  States  Attorneys, 
Judges,  and  other  responsible  officers  are  also  to  be  ap- 
pointed by  the  President.  A  District  Court  is  established, 
having  general  jurisdiction  over  civil,  criminal,  equity, 
and  admiralty  cases,  and  for  the  settlement  of  mining 
disputes.  Appeals  may  be  taken  from  this  court  to  the 
United  States  Supreme  Court  if  constitutional  questions 
are  involved ;  in  other  cases  appeals  are  carried  to  the 
United  States  Circuit  Court.  Three  judges  are  appointed 
who  are  authorized  to  appoint  Commissioners  throughout 
Alaska,  who  are  to  act  as  justices  of  the  peace,  recorders, 
and  so  forth.  Provisions  are  also  made  for  appointment 
of  marshals  and  deputies  for  carrying  out  the  orders 
of  the  Judges  and  Commissioners.  There  is  no  pro- 
vision for  a  general  legislative  body:  Congress  acts  in 
that  capacity.  Local  self-government  is  provided  for 
in  towns  of  three  hundred  inhabitants  by  their  incorpor- 
ation. 

Officially,  the  term  "Insular  Possessions"  is  used  to 
include  the  Philippines,  our  Samoan  Islands,  Guam,  and 
other  minor  islands  in  the  western  Pacific  that  The  insular 
belong  to  the  United  States.  Porto  Rico,  and  Possessions. 
the  West  Indian  Islands  lately  purchased  from  Denmark, 


374  The  American  Republic 

as  they  are  also  under  the  absolute  government  of  Con- 
gress, may  be  included  in  this  description. 

The  Samoan  Islands  were  formerly  under  the  govern- 
ment jointly  of  Great  Britain,  Germany,  and  the  United 
Samoan  States.     In  1900,  this  arrangement  was  termi- 

isiands.  nated  by  a  treaty,  and  we  obtained  absolute 

ownership  of  three  of  the  Samoan  Islands,  the  most  im- 
portant being  Tutuila.  A  military  government  was  es- 
tablished there. 

Porto  Rico  came  under  the  jurisdiction  of  the  United 
States  by  the  Treaty  of  Paris  with  Spain  in  1898.  The 
Porto  Rico  island  has  an  area  of  about  3,600  square  miles, 
and  its  and  a  population  of  about  953,000.     Civil  gov- 

ernment for  Porto  Rico  along  the  lines  of  that 
for  our  Organized  Territories  was  provided  in  the  so-called 
Foraker  Act,  passed  by  Congress  April  12,  1900.  This 
act  established  ports  in  the  island,  provided  a  system  of 
education,  established  the  authority  of  the  United  States 
District  Courts,  provided  for  a  revenue  system  and  in- 
ternal improvements  and  organized  a  local  Territorial 
government. 

The  governmental  system  provides  (1)  a  Chief  Execu- 
tive who  is  appointed  by  the  President,  with  a  term  of 
four  years  at  a  salary  of  $8000  a  year.  (2)  An  Executive 
Council  of  eleven  members,  also  appointed  by  the  Presi- 
dent, consisting  of  a  Secretary,  Attorney-General,  Treas- 
urer, Auditor,  Commissioner  of  Education,  Commissioner 
of  the  Interior,  and  five  others.  Five  of  the  Council  are 
to  be  native  Porto  Ricans,  and  all  are  to  hold  office  for 
four  years.  (3)  A  Lower  House  of  legislation,  consisting 
of  thirty-five  members  elected  every  two  years  by  the 
voters.  The  Judiciary  consists  of  a  Supreme  Court  and 
a  District  Court  of  the  United  States  for  Porto  Rico. 

This  government,  of  course,  is  subject  at  any  time  to 
change  by  Congress,  the  latter  body  exercising  sovereign 
and  absolute  control  over  the  Island.     The  Island  is  al- 


The  Territories  and  their  Government  375 

lowed  a  resident  commissioner  at  Washington,  whose 
duty  it  is  to  look  after  the  interests  of  the  Island  in  Con- 
gress. This  officer  is  not  like  the  delegates  from  the  other 
Territories,  as  he  has  no  seat  in  Congress,  but  he  has, 
rather,  diplomatic  relations  with  the  President.  The 
previous  subjects  of  Spain  in  the  island  are  declared  to 
be  citizens  of  Porto  Rico  (not  of  the  United  States), 
and  are  entitled  to  the  protection  of  the  United  States 
except  those  who  choose  to  retain  their  allegiance  to 
Spain. 

The  Sulu  Islands  in  the  Philippine  group  were  never 
actually  under  Spanish  rule.  A  treaty  was  made  between 
the  Sultan  of  Sulu  and  the  United  States  in  TheSuiu 
August,  1899.     American  sovereignty  was  ac-  islands, 

knowledged  and  its  protection  against  all  foreign  powers 
was  extended  over  the  islands.  The  Sulu  government 
of  the  Sultan  was  not  interfered  with,  the  Sultan  and  his 
officers  receiving  salaries  from  our  Government.  It  was 
provided  that  the  United  States  may  occupy  and  control 
such  points  in  the  islands  as  its  interests  may  demand. 
The  native  institutions  of  slavery  and  polygamy  were  not 
interfered  with,  though  any  slave  was  given  the  oppor- 
tunity to  purchase  his  freedom. 

The  Constitution  of  the  United  States  says: 

"  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  be  Slavery  among 
duly  convicted,  shall  exist  within  the  United  States  the  Suius. 
or  any  place  subject  to  their  jurisdiction."  ' 

No  treaty  law  can  be  higher  than  the  law  of  the  Con- 
stitution, and  it  is  therefore  doubted  whether  the  ar- 
rangement made  by  our  military  authorities  with  the 
Sulu  Sultan  can  be  sustained  by  Congress  under  any  civil 
administration. 

1  Thirteenth  Amendment. 


376  The  American  Republic 

The  Philippines,  like  Porto  Rico,  came  under  the  juris- 
diction of  the  United  States  by  the  Treaty  of  Paris,  1898. 
The  This  treaty  was  signed  by  the  joint  commis- 

Phiiippines.  sioners  at  Paris,  December  10,  1898,  ratified 
by  the  United  States  February  6,  1899,  declared  to  be 
in  effect,  April  11,  1899.  During  these  negotiations,  and 
until  Congress  should  erect  a  civil  government  for  the 
Philippines,  the  government  was  a  military  government 
under  the  President  as  Commander-in-Chief  of  the  mili- 
tary and  naval  forces.  The  President  appointed  General 
Otis  as  Military  Governor  of  the  Islands,  and  a  special 
commission  of  five  members,  with  President  Schurman, 
of  Cornell  University,  at  its  head,  to  investigate  the 
condition  of  affairs  in  the  islands.  Early  in  1900  a 
new  Philippine  Commission  of  five  members  was  ap- 
pointed, with  Judge  William  H.  Taft  at  its  head,  who 
went  to  the  Philippines  for  the  purpose  of  establishing 
civil  government  there,  when  this  was  authorized,  and  so 
far  as  conditions  would  permit,  and  as  the  Military  Gov- 
ernor or  the  President  might  direct.  Some  question 
arose  as  to  whether  the  Civil  Governor  or  the  Military 
„.  .,  n  Governor  should  control.     The  Civil  Govern- 

Civil  Govern- 
ment in  the  ment  proceeded  to  proclaim  amnesty  to  all 
Philippines.  jn  insurrection  against  the  United  States,  and 
municipal  and  provincial  governments  were  erected  in 
certain  cities  and  provinces  under  the  authority  of  the 
Commission.  The  Fifty-sixth  Congress  adjourned  (March, 
1901)  without  providing  a  permanent  civil  government 
for  the  Philippines,  but  provided,  instead,  that  all  powers 
"for  the  establishment  of  civil  government  and  for  pro- 
tecting the  inhabitants  of  said  islands  in  the  enjoyment  of 
their  liberties,  property,  and  religion  should  be  vested  in 
such  persons  and  exercised  in  such  manner  as  the  Presi- 
dent should  direct."  Reports  of  this  temporary  govern- 
ment are  to  be  made  to  Congress.  The  Act  of  1902 
for  the  government  of  the  Philippines,  following  the  re- 


The  Territories  and  their  Government  377 

port  of  the  Philippine  Commission,  provides  that  after 
January  i,  1904,  the  executive  power  shall  be  vested 
in  a  Governor  and  a  Cabinet  of  six  heads  of  Depart- 
ments, a  Secretary,  an  Attorney-General,  a  Treasurer, 
an  Auditor,  a  Commissioner  of  the  Interior,  and  a  Com- 
missioner of  Education,  all  required  to  reside  in  the  Phil- 
ippines, appointable  and  removable  by  the  President. 
They  may  or  may  not  be  natives,  but  no  person  holding 
any  civil  or  military  office  under  the  United  States  is 
eligible  to  appointment  in  this  Cabinet.  The  Governor 
and  his  Cabinet,  with  five  native  inhabitants  of  the  Phil- 
ippines, also  appointed  by  the  President,  constitute  a 
Council.  The  political  functions  of  this  Council  are  those 
of  an  upper  House.  The  Lower  House,  or  House  of 
Delegates,  consists  of  thirty  members,  elected  biennially 
by  the  people.  A  voter  for  the  House  of  Delegates  must 
be  twenty-one  years  of  age,  able  to  read  or  write  either 
Spanish  or  English,  or  possess  taxable  property,  real  or 
personal,  situated  in  the  Philippines,  and  must  have  re- 
sided in  the  Philippines  for  one  year  next  preceding  the 
election.  All  legislative  functions  are  exercised  by  the 
concurrent  action  of  these  two  Houses,  the  one  ap- 
pointed by  the  President,  the  other  elected  by  the  people. 
The  Governor  is  to  have  a  salary  of  fifteen  thousand 
dollars,  a  Cabinet  member  of  ten  thousand  dollars  per 
year.  The  delegates  are  to  have  five  dollars  a  day,  and 
the  salaries  of  the  native  members  of  the  Council  are  to 
be  fixed  by  the  Philippine  legislature.  The  provisions 
for  the  protection  of  religious  freedom,  property,  and 
personal  rights,  are  the  same  as  in  our  own  Constitution, 
but  there  are  no  specific  provisions  guaranteeing  freedom 
of  speech,  freedom  of  the  press,  freedom  of  assembly, 
the  right  to  bear  arms,  or  trial  by  jury. 

It  will  be  seen  that  there  must  be  concurrent  agreement 
between  the  provincial  and  the  national  judgment  (repre- 
sented by  the  appointees  of  the  President)  before  legisla- 


37%  The  American  Republic 

tion  can  be  secured.  However,  "in  case  of  the  failure  of 
the  legislature  during  the  three  months  of  its  regular  ses- 
sion to  vote  the  necessary  supplies  for  the  carrying  on  of 
the  government,  then  the  right  and  authority  to  vote  such 
supplies  is  hereby  vested  in  the  Council."  Thus,  as  will 
be  seen,  the  acts  providing  government  for  Porto  Rico 
and  the  Philippines  are  along  essentially  the  same  lines. 
Danish  West  The  islands  in  the  West  Indies  lately  acquired 
India  islands.  from  Denmark — St.  Thomas,  St.  John,  and 
St.  Croix, — will  have  their  political  status  determined  by 
Congress.  The  government  of  these  islands  will  be 
like  that  of  Porto  Rico,  or  they  may  even  be  placed  under 
the  Porto  Rican  government. 

Since    the    acquisition    of    the    Spanish    islands    five 
judges  of  the  Supreme  Court,  constituting  a 

Constitutional  J        °     .  ,      ,         ~  ,  i  m 

Law  and  the  majority  of  the  Court,  thpugh  not  the  same 
island  £ve  in  each  casG)  have  agreed  to  the  following 

Possessions.  m 

as  constitutional  law : 
i.  After  a  territory  has  been  acquired  by  conquest  or 
purchase  bv  the  United  States  it  ceases  to  be 

WhenTerri-      ^  \  . 

tory  ceases  to  foreign  territory  and  the  tariff  laws  applicable 
be  Foreign.      tQ    imp0rts    from  foreign  countries  no  longer 

apply.1 

2.  While  it  is  under  military  government,  the  military 
authority  may  establish  a  system  of  taxation,  and  such 
system  of  taxation  can  be  constitutionally  en- 
PoweTof  the  forced.  It  may  assess  duties  on  goods  brought 
Military  Gov-  from  New  York  to  Porto  Rico,  though  in 
another  decision  this  trade  is  declared  to  be 
coastwise."  This  power  comes  within  the  "war  powers  " 
of  the  President.  But  this  war  power  to  exact  duties 
upon  imports  from  the  United  States  ceases  upon  ratifi- 
cation of  the  treaty.3 

1  De  Lima  vs.  Bidwell,  182  U.  S.,  1. 

1  Huis  vs.  New  York  and  Porto  Rican  Steamship  Company. 

s  Dooley  vs.  United  States. 


The  Territories  and  their  Government  379 

3.  Such  territory  is  not  an  integral  part  of  the  United 
States,  but  a  possession  of  the  United  States:  it  cannot 
be  made  a  part  of  the  United  States  by  the  TheIslands 
treaty-making  power, — i.  e.,  by  President  and  Are  a  Posses- 
Senate, — but  can  be  made  so  only  by  some  act  i^tz^vlrt 
of  Congress  which  explicitly  or  by  necessary  im-  of  the  United 
plication  incorporates  it  into  the  United  States.  states" 

The  treaty-making,  or  the  war  power  may  acquire,  but 
cannot  incorporate,  new  territory  into  the  United  States. 
The  treaty  power  may  convert  foreign  territory  into  do- 
mestic territory,  but  the  power  to.  bring  this  territory  into 
the  corporation  known  as  the  United  States  is  in  the  rep- 
resentatives of  the  people  in  Congress.1 

By  the  first  decision  it  is  agreed  that  the  treaty  and 
war  powers  of  the  Government  may  convert  foreign  into 
domestic  territory. ,  No  act  of  Congress  is  necessary.3 
In  the  fall  of  1899,  a  firm  of  importers  protested  against 
paying  duties  on  Porto  Rico  sugars,  and  they  sued  the  Col- 
lector of  the  Port  of  New  York  (Bidwell)  to  recover  back 
the  duties  paid  under  protest.  The  importation  occurred 
after  the  ratification  of  the  treaty  with  Spain  ceding  Porto 
Rico,  but  before  the  passage  of  the  Foraker  Act  provid- 
ing a  civil  government  for  the  island.  The  duties  were 
collected  under  the  Dingley  Law  of  1897,  enacted  before 
the  beginning  of  the  Spanish  War,  which  authorized  the 
imposition  of  duties  "on  goods  imported  from  a  foreign 
country."  In  another  case,  a  soldier  by  the  name  of 
Pepke,  returning  from  the  Philippines  after  the  treaty  of 
peace  with  Spain,  but  before  Congress  had  passed  an  act 
of  civil  government  for  the  Philippines,  or  any  act  regu- 
lating the  tariff  rates  between  those  islands  and  the 
States,  brought  with  him  a  number  of  diamond  rings. 
These  were  taken  from  him  by  the  custom-house  officers 

1  See  the  opinion  of  Justice  White  on  this  point. 

JSee  De  Lima  w.   Bidwell,  May  27,  1901,  and  the  Pepke  case,  or  the 
"Diamond  Rings"  case,  December,  1901. 


380  The  American  Republic 

because  he  had  paid  no  duty  on  them.  Pepke  sued  for 
recovery.  In  this  suit  for  recovery  the  question  was 
whether  these  rings  were  imported  from  a  "foreign  coun- 
try." In  both  these  cases  the  Court  held  that  by  the 
fact  of  cession  Porto  Rico  and  the  Philippines  ceased 
to  be  foreign  territory.  A  foreign  country  is  one  ex- 
clusively within  the  sovereignty  of  a  foreign  nation  and 
without  the  sovereignty  of  the  United  States.  A  district 
ceded  to  and  in  the  possession  of  the  United  States  does  not 
remain  for  any  purpose  a  foreign  country.  Both  of  these 
conditions  must  exist  to  produce  a  change  of  nationality 
for  revenue  purposes.  Possession  alone  is  not  sufficient ; 
nor  is  a  treaty  of  cession  sufficient  without  a  surrender  of 
possession.  But  when  both  conditions  exist  the  district 
ceases  to  be  foreign  and  becomes  domestic.  A  country 
cannot  be  foreign  for  one  purpose  and  domestic  for  an- 
other. The  country  does  not  remain  foreign  with  respect 
to  the  tariff  laws  until  Congress  has  acted  embracing  it 
within  the  customs  union.  Therefore  no  act  of  Congress 
is  necessary  to  make  foreign  territory  into  domestic  terri- 
tory. According  to  this  decision,  when  the  Treasury 
Department  proceeded  to  collect  the  same  duties  that 
had  been  collectible  before  the  cession  it  acted  unconsti- 
tutionally and  illegally. 

The  principle  here  decided  is  not  very  important,  for  it 
has  to  do  with  a  temporary  condition  only,  though  this 
condition  may  recur  frequently.  A  more  permanent  and 
fundamental  question  relates  to  the  power  of  Congress 
over  the  ceded  territory. 

The  constitu-  ^s  Congress  restrained  in  its  government  of  the 
tionai  Powers  ceded  Territories  by  the  limitations  of  the  Con- 

of  Congress  in        .         .        a 
the  Island  StlUltlOU  ? 

Possessions.  This  has  been  the  most  prominent  question 
in  American  law  and  politics  in  recent  years.  As  a  ques- 
tion of  constitutional  law  it  has  been  but  recently  passed 
upon  by  the  Supreme  Court  in  what  are  generally  known 


The  Territories  and  their  Government  381 

as  the  Insular  cases,  but  as  a  question  of  statesmanship 
and  public  policy  it  is  by  no  means  a  recent  question.  It 
came  up  in  our  first  acquisition  of  foreign  territory  by  the 
Louisiana  Purchase.  The  Louisiana  Purchase  was  ob- 
jected to  as  unconstitutional  for  three  reasons : 

1.  The  Constitution  conferred  upon  Congress  no  power 
to  acquire  territory. 

2.  But  if  Congress  could  acquire  territory,  neither  con- 
quest nor  purchase  could  incorporate  the  new  territory  in 
the  Union,  as  the  Louisiana  Treaty  guaranteed  Constitutional 
to  do.  It  must  remain  in  the  condition  of  objections  to 
a  colony  until  it  is  admitted,  not  by  the  the  ^^ 
treaty  power,  but  by  the  same  confederated 
powers,  the  States,  that  had  made  the  Union  and  the 
Constitution,  each  State  consenting. 

3.  The  treaty  provided  that  the  ships  of  France  and 
Spain  be  admitted  for  twelve  years  into  the  ports  of 
the  ceded  territory  without  paying  higher  duties  than  the 
ships  of  the  United  States.  This,  it  was  asserted,  was  in 
opposition  to  the  clauses  of  the  Constitution  which  de- 
clare that  "no  preference  shall  be  given  to  the  ports  of 
one  State  over  those  of  another,  and  that  all  duties,  ex- 
cises, and  imposts  shall  be  uniform  throughout  the  United 
States." 

It  was  replied,  in  the  first  place,  that  the  right  to  ac- 
quire territory  must  exist  somewhere :  it  is  essential  to 
independent  sovereignty.  As  it  was  prohibited  Constitutional 
to  the  States,  the  power  was  necessarily  vested  Defence  of  the 
in  the  United  States.  It  was  involved  in  the 
treaty  and  war  powers  and  belonged  to  all  independent 
governments.  Powers  inherent  in  sovereignty  which  had 
not  been  expressly  reserved  to  the  States  were  vested  in 
the  National  Government.  This  view  as  to  the  power 
of  the  National  Government  to  acquire  territory  by  con- 
quest or  purchase  is  now  universally  accepted,  and  the 
power  is  now  unquestioned.      In  powers  that  pertain  to 


3S2  The  American  Republic 

a  nation  the  United  States  may  do  what  any  nation  may 
do. 

The  second  objection  was  evaded  in  the  recognition  of 
the  fact  that  the  treaty  power  had  only  promised  to  admit 
the  new  territoiy.  It  was  held  by  the  objectors  that 
only  the  States,  as  the  copartners  to  the  compact,  could 
fulfil  the  promise;  that,  therefore,  the  new  possessions 
must  remain  in  the  condition  of  colonies  and  be  governed 
accordingly.  "The  union  of  the  States  was  formed  on 
the  principles  of  a  copartnership,  and  it  would  be  absurd 
to  suppose  that  the  agents  of  the  parties,  who  have  been 
appointed  to  execute  the  business  of  the  compact  in  be- 
half of  the  principals,  could  admit  a  new  partner  without 
the  consent  of  the  parties  themselves."  '  As  to  whether 
the  treaty-making  power  could  incorporate  the  inhabi- 
tants of  ceded  territory  with  the  citizens  of  the  United 
States,  no  doubt  Jefferson  and  Madison  and  the  men  of 
their  time  denied  such  power.  That  such  territory  and 
its  inhabitants  would  be  incorporated  by  the  treaty  it- 
self and  brought  under  the  Constitution  in  spite  of  its 
stipulations  was  not  to  be  supposed.  But  it  was  soon 
subsequently  allowed,  and  it  is  now  not  denied,  that  Con- 
gress was  competent  to  fulfil  this  treaty  promise,  which 
it  did  by  the  admission  of  Louisiana  in  1812. 

In  replying  to  the  third  objection,  that  the  Constitution 
required  the  customs  dues  to  be  uniform  throughout  the 
United  States,  Nicholson,  a  leader  of  the  Jeffersonian 
Republicans  in  the  House,  said  that  the  Territories  of 
the  United  States  were  no  part  of  the  United  States; 
that  they  were  possessions  of  the  United  States  and  only 
became  integral  parts  of  it  when  they  were  admitted  into 
the  Union  as  States.  The  Territories  of  the  country 
were  in  the  nature  of  Colonies  and  might  be  governed  by 
the  American  Government  as  it  saw  fit  without  regard  to 
the  restrictions  of  the  Constitution.      "Louisiana  is  a 

1  Speech  of  Griswold,  Annals  of  Congress,  1S03-1804,  p.  461. 


The  Territories  and  their  Government  383 

territory  purchased  by  the  United  States  in  their  con- 
federate capacity,  and  may  be  disposed  of  by  them  at 
pleasure.  It  is  in  the  nature  of  a  colony  whose  commerce 
may  be  regulated  without  any  reference  to  the  Constitu- 
tion." ' 

In  harmony  with  this  political  view,  the  act  of  Congress 
organizing  a  temporary  government  for  Louisiana  gave 
the  President  of  the  United  States  the  same  civiiGovem- 
power  over  the  territory  that  had  been  exer-  L  JJJ^*  f£ 
cised  by  the  King  of  Spain,  until  Congress  1804  Was 
should  decide  upon  a  permanent  form  of  gov-  Absolute. 
ernment.  It  was  seen  to  be  necessary  that  the  United 
States  should  take  possession  of  the  country  in  the  ca- 
pacity of  sovereign  to  the  same  extent  as  that  of  the 
Governments  of  France  and  Spain.  It  was  maintained 
that  there  was  no  Constitution  so  far  as  the  Territories 
were  concerned.  In  1803,  Jefferson  signed  a  bill  which 
put  him  in  possession  of  absolute  power  over  the  people 
of  Louisiana.  Afterwards,  the  permanent  government 
for  Louisiana,  provided  in  1804,  gave  to  the  President 
power  to  appoint  both  the  Governor  and  the  Legislative 
Council,  and  the  Governor  might  assemble  and  prorogue 
the  legislature  at  his  pleasure,  and  he  had  a  negative  on 
all  legislative  acts.  Such  a  government  was  practically 
absolute  and  it  was  such  as  is  not  known  to  the  Consti- 
tution. The  limitations  of  the  Constitution  were  not 
held  to  bind  either  Congress  or  the  President  in  the  early 
government  of  Louisiana. 

The  public  policy  pursued  in  our  first  territorial  acqui- 
sitions has  been  followed  in  our  last,  and  that  statusof  In_ 
'policy  has  now  received  in  the  late  Insular  cases     habitants  of 

iX^  >    •  C6dcd  Islands 

the  sanction  of  constitutional  law  in  a  decision     t0  be  Deter. 
of  the  Supreme  Court.  Sngrea 

In  the  treaty  which  closed  the  Spanish  War 
in  1898,  sovereignty  over  Porto  Rico  and  the  Philippines 
1  Gordy's  History  of  Political  Parties,  vol.  i.,  pp.  431-432. 


3S4  The  American  Republic 

was  ceded  to  the  United  States,  and  it  was  provided  in  the 
treaty  that  the  "civil  and  political  status  of  the  native 
inhabitants  shall  be  determined  by  Congress." 

As  a  point  of  constitutional  law  the  question  of  the  ex- 
tent of  congressional  power  in  these  islands  came  before 
the  Supreme  Court  in  a  case  to  determine  whether  Con- 
gress had  power  to  establish  a  different  revenue  system 
for  the  ceded  territory  from  that  which  applies  "through- 
out the  United  States."  The  Constitution  says  that 
"all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States." 

In  November,  1900,  after  the  passage  of  the  Foraker 
Act  providing  a  civil  government  for  Porto  Rico,  an  im- 
porter shipped  into  New  York  some  oranges  from  that  isl- 
and. Duties  were  demanded  on  these  oranges  under  the 
Foraker  Act.  The  former  case,1  in  which  the  Court  held 
that  Porto  Rico  was  domestic,  not  foreign,  territory,  came 
up  after  the  treaty  cession  of  the  island,  but  before  Con- 
gress had  passed  an  act  for  its  civil  government.  The 
latter  case,  testing  the  extent  of  congressional  power, 
arose  after  Congress  had  passed  an  act  organizing  Porto 
Rico  into  a  Territory,  and  providing  for  the  laying  of 
duties  upon  imports  from  the  island  different  from  the 
duties  on  importations  from  foreign  countries.  Such 
different  duties,  of  course,  could  not  be  laid  at  all  if  Porto 
Rico  were  a  part  of  the  United  States.  If  Porto  Rico 
were  a  part  of  the  United  States  in  the  sense  in  which  In- 
diana or  Arizona  or  New  Mexico  or  California  is,  no 
duties  could  be  laid  upon  her  products  any  more  than 
duties  could  be  laid  upon  a  cargo  of  oranges  brought  from 
San  Francisco  to  Chicago.  It  will  be  seen  that  this  case 
involved  the  whole  question  of  the  power  of  Congress 
over  the  Territories, —  whether  this  power  is  unlimited 
and  plenary,  or  whether  it  is  limited  by  the  restraints  of 
the  Constitution. 

1  The  De  Lima  case. 


The  Territories  and  their  Government  385 

In  concluding  its  decision  the  Supreme  Court  said : 

"  Patriotic  and  intelligent  men  may  differ  widely  as  to  the 
desirableness  of  this  or  that  acquisition,  but  this  is  solely  a 
political  question.  We  can  only  consider  this  aspect  of 
the  case  so  far  as  to  say  that  no  construction  of  congress  is 
the  Constitution  should  be  adopted  which  would     Not  Limited 

....  by  the  "  Uni- 

prevent  Congress  from  considering  each  case  upon  form-Revenue 
its  merits  unless  the  language  of  the  instrument  Clause  "  of  the 
imperatively  demand  it.  A  false  step  at  this  time 
might  be  fatal  to  the  development  of  what  Chief  Justice  Mar- 
shall called  '  the  American  Empire. '  Choice  in  some  cases, 
the  natural  gravitation  of  small  bodies  towards  large  ones  in 
others,  the  result  of  a  successful  war  in  still  others,  may  bring 
about  conditions  which  would  render  the  annexation  of  distant 
possessions  desirable.  If  those  possessions  are  inhabited  by 
alien  races,  differing  from  us  in  religion,  customs,  laws,  meth- 
ods of  taxation,  and  modes  of  thought,  the  administration 
of  government  and  justice,  according  to  Anglo-Saxon  princi- 
ples, may  for  a  time  be  impossible;  and  the  question  at  once 
arises  whether  large  concessions  ought  not  to  be  made  for  a 
time,  that  ultimately  our  own  theories  may  be  carried  out, 
and  the  blessings  of  a  free  government  under  the  Constitution 
extended  to  them.  We  decline  to  hold  that  there  is  anything 
in  the  Constitution  to  forbid  such  action.  We  are  therefore  of 
opinion  that  the  island  of  Porto  Rico  is  a  territory  appurte- 
nant and  belonging  to  the  United  States,  but  not  a  part  of  the 
United  States  within  the  revenue  clauses  of  the  Constitution; 
that  the  Foraker  Act  is  constitutional,  so  far  as  it  imposes 
duties  upon  imports  from  such  island,  and  that  the  plaintiff 
cannot  recover  back  the  duties  exacted  in  this  case."  l 

It  was  thus  held  that  the  uniform  revenue  clause  of 
the  Constitution  does  not  bind  Congress  in  the  govern- 
ment of  the  ceded  islands.  In  respect  to  a  customs  law 
for  the  island  the  power  of  Congress  is  not  determined  by 

1  Supreme  Court  decision,  Downes  vs.  Bidwell,  May,  1901. 
35 


386  The  American  Republic 

the  Constitution.     The  Constitution  of  the  United  States 
in  this  particular  is  not  the  constitution  for  Porto  Rico. 

This  was  all  that  was  decided  in  this  case.  Whether 
other  constitutional  restrictions  apply  to  the  ceded  terri- 
tory, and,  if  so,  which  apply,  remains  to  be  determined. 
But  the  decision  is  significant  of  more  than  this,  because 
of  its  political  bearings.  The  governmental  principles  or 
the  politics  for  the  guidance  of  statesmen  that  have  been 
deduced  from  this  decision  may  be  summarized  as  fol- 
The  Pontics  of  l°ws :  The  people  of  the  ceded  Islands  are  under 
the  supreme    the  complete  sovereignty  of  Congress ;  in  the 

Court  Decision.  •  r    i.t_  •  *.       r* 

exercise  of  this  sovereignty  Congress,  repre- 
senting the  people  of  the  United  States,  is  controlled  by 
no  legal  limitations  except  those  that  may  be  found  in  the 
treaty  of  cession ;  the  people  of  the  Islands  have  no  right 
to  have  these  islands  treated  as  States,  or  to  have  them 
treated  as  the  Territories  previously  held  by  the  United 
States  have  been  treated  ;  they  have  no  legal  rights  under 
the  provisions  of  the  Constitution ;  territory  can  now  be 
acquired  which  does  not  contemplate  statehood ;  our 
Constitution  was  established  for  the  people  of  the  United 
States  themselves  and  to  meet  the  conditions  existing 
upon  this  continent,  and  therefore  the  people  of  the  new 
territory  can  assert  against  Congress  no  legal  right  what- 
ever not  found  in  the  treaty  of  cession.1  The  only  re- 
straint imposed  upon  Congress  in  the  government  of  the 
Islands  is  the  restraint  of  moral  and  customary  law, 
or  the  law  of  precedent,  or  such  limitations  as  public 
opinion  may  impose ;  the  written  Constitution  does  not 
apply  to  the  new  Territories.  Their  inhabitants  are 
not  citizens  of  the  United  States,  but  subjects,  they  are  not 
members  of  the  body  politic  for  whom  the  Constitution 
was  made,  but  are  under  its  government  and  subject  to 
its  control;  these  territories  are  not  a  part  of  the  United 
States  until  made  so  by  an  act  of  Congress  but  are  only 

1  Report  of  Secretary  of  War,  1899. 


The  Territories  and  their  Government  387 

dependent  colonies,  or  appurtenances,  or  possessions  of 
the  United  States,  and  that  therefore  the  prohibitions  of 
the  Constitution  on  the  power  of  Congress  do  not  apply 
in  their  government ;  Congress  has  a  free  hand  to  do  as 
the  public  welfare  may  demand. 

Those  who  oppose  the  decision  see  more  dangerous 
political  aspects  within  it, — political  features  that  lay  the 
axe  at  the  very  root  of  constitutional  govern-  objections  to 
ment.  If  in  governing  the  Territories  the  the  Decision. 
Constitution  can  be  set  aside  in  one  particular  it  can  be 
set  aside  in  all ;  if  the  principle  of  this  decision  is  to  be  ex- 
tended and  carried  to  its  logical  conclusion  Congress  may, 
if  it  choose,  assess  an  export  tax  at  any  territorial  port, 
or  impose  import  duties  not  uniform  with  those  at  other 
ports  of  the  United  States,  or  pass  ex  post  facto  laws,  bills 
of  attainder,  or  grant  titles  of  nobility,  deny  the  right  of 
trial  by  jury,  or  the  right  of  free  speech  or  a  free  press; 
in  short,  the  government  of  Congress  for  the  Territories 
is  sovereign,  supreme,  and  absolute,  unlimited  by  any 
part  of  the  Constitution,  and  the  people  of  the  new  terri- 
tories hold  their  rights  of  life,  liberty,  and  property  at  the 
absolute  will  of  Congress. 

The  decision  of  the  Court  by  no  means  involves  all 
these  conclusions.  The  decision  does  not  assert  that  none 
of  the  articles  of  the  Constitution  apply  to  Porto  Rico, 
The  Justices  concurring  in  the  decision  recognized  the 
necessity  of  guarding  against  such  conclusions.  Justice 
Brown,  in  announcing  the  judgment  of  the  Court,  said  : 

"  There  is  a  clear  distinction  between  such  prohibitions  as 
go  to  the  very  root  of  the  power  of  Congress  to  act  at  all, 
irrespective  of  time  or  place,  and  such  as  are  operative  only 
'  throughout  the  United  States,'  or  among  the  several  States. 
Thus  when  the  Constitution  declares  that  no  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed  and  that  'no  title  of  nobility 
shall  be  granted,'  it  goes  to  the  competency  of  Congress  to  pass 
a  bill  of  that  description." 


388  The  American  Republic 

The  same  remark  applies  to  the  prohibitions  contained  in 
the  amendments,  but  as  these  amendments  were  not  in- 
volved in  the  case  the  Court  very  properly  declined  to 
express  an  opinion  as  to  how  far  the  bill  of  rights  con- 
tained in  the  first  eight  amendments  is  of  general  and 
how  far  of  local  application. 

The  decision  of  the  Court  continues: 

"There  may  be  a  distinction  between  certain  natural  rights, 
enforced  in  the  Constitution  by  prohibitions  against  interfer- 
ence with  them,  and  what  may  be  termed  artificial  or  remedial 
rights  which  are  peculiar  to  our  own  system  of  jurisprudence. 
Of  the  former  class  are  the  rights  to  one's  own  religious  opinions 
and  to  a  public  expression  of  them,  or,  as  sometimes  said,  to 
worship  God  according  to  the  dictates  of  one's  own  conscience ; 
the  right  to  personal  liberty  and  individual  property;  to  free- 
dom of  speech  and  of  the  press;  to  free  access  to  courts  of 
justice,  to  due  process  of  law,  and  to  an  equal  protection  of  the 
laws;  to  immunities  from  unreasonable  searches  and  seizures, 
as  well  as  cruel  and  unusual  punishments,  and  to  such  other 
immunities  as  are  indispensable  to  a  free  government.  Of  the 
latter  class  are  the  rights  to  citizenship,  to  suffrage,  and  to  the 
particular  method  of  procedure  pointed  out  in  the  Constitution 
which  are  peculiar  to  Anglo-Saxon  jurisprudence,  and  some 
of  which  have  already  been  held  by  the  States  to  be  unneces- 
sary to  the  proper  protection  of  individuals.  Whatever  may  be 
finally  decided  by  the  American  people  as  to  the  status  of 
these  islands  and  their  inhabitants, — whether  they  shall  be  in- 
troduced into  the  sisterhood  of  States  or  be  permitted  to  form 
independent  governments, — it  does  not  follow  in  the  meantime, 
awaiting  that  decision,  that  the  people  are  in  the  matter  of 
personal  rights  unprotected  by  the  provisions  of  our  Consti- 
tution, and  subject  to  the  merely  arbitrary  control  of  Congress. 
Even  if  regarded  as  aliens  they  are  entitled  under  the  prin- 
ciples of  the  Constitution  to  be  protected  in  life,  liberty,  and 
property.  This  has  been  frequently  held  by  this  Court  in 
respect  to  the  Chinese,  even  when  aliens,  not  possessed  of  the 
political  rights  of  citizens  of  the  United  States.     We  disclaim 


The  Territories  and  their  Government  389 

any  intention  to  hold  that  the  inhabitants  of  these  territories 
are  subject  to  an  unrestrainable  power  on  the  part  of  Congress 
to  deal  with  them  upon  the  theory  that  they  have  no  rights 
which  it  is  bound  to  respect."  ' 

Also  Justice  White,  one  of  the  majority  assenting  to  the 
decision  of  the  Court,  but  not  to  the  ground  of  that  de- 
cision, declared  that  "undoubtedly  there  are  general  pro- 
hibitions of  the  Constitution  which  are  an  absolute  denial 
of  all  authority  under  any  circumstances  or  conditions  to 
do  particular  acts,  and  these  are  limitations  that  cannot 
under  any  circumstances  be  transcended,"  and  "there  is 
no  reason  to  contend  that  Congress  can  destroy  the  lib- 
erties of  the  people  of  Porto  Rico  by  exercising  powers 
against  freedom  and  justice  which  the  Constitution  has 
absolutely  denied." 

Not  only  the  judges  who  gave  the  decision,  but  the 
statesmen  who  are  responsible  for  the  political  policy  that 
it  sustains,  deny  that  the  people  of  the  ceded 

J  L        x  .      Guarantees  to 

islands  are  deprived  of  all  guarantees  to  their  Civil  Rights 
civil  rights.     To  deny  the  application  of  the  JJj^JJ 

Constitution  to  Porto  Rico  is  not  to  deny  to 
its  people  civil  rights ;  it  is  not  to  deny  the  guarantees  of 
peace  and  order,  the  right  to  life,  liberty,  property,  and 
the  pursuit  of  happiness.  These  are  guaranteed  by  laws 
and  forces  that  are  anterior  to  the  Constitution  and  above 
it.  A  constitution  does  not  create  a  body  politic ;  a  body 
politic,  already  in  the  possession  of  recognized  rights, 
creates  a  constitution.  A  constitution  does  not  beget 
and  confer  personal  and  political  freedom ;  it  is  not  the 
fountain  of  law  nor  the  origin  of  private  rights.  The 
Constitution  is  the  consequence,  not  the  cause,  of  these 
things.  It  grants  no  rights  to  the  people,  but  it  is  the 
creature  of  their  power,  the  instrument  to  secure  and 
defend  these  rights.     As  an  instrument  of  government  it 

'Justice  Brown's  decision  of  the  court,  American  Law  Review,  July- 
August,  1901,  pp.  599-600. 


39°  The  American  Republic 

is  based  upon  the  pre-existing  condition  of  laws,  rights, 
habits,  and  modes  of  thought.1 

These  are  the  real  principles  and  forces  that  make  the 

Constitution  and  the  laws  and  that  extend  the  beneficence 

of   these    laws    over    increasing   peoples.       In 

There  Are  ,11 

Unwritten  Anglo-Saxon  history  they  have  not  always 
Guarantees.  been  written,  but  they  have  always  been  effec- 
tive. The  rights  of  the  people  of  the  ceded  islands  are 
guaranteed  by  these  principles  and  forces,  or  by  what  has 
been  called  the  spirit  of  the  Constitution  and  its  unwritten 
law.  Custom,  usage,  precedent,  our  political  habits, 
public  expectation,  the  spirit  and  love  of  American  lib- 
erty, the  fundamental  principles  on  which  the  nation  was 
founded  and  by  which  it  is  guided, — all  these  are  the 
forces  to  be  relied  upon  to  restrain  the  power  of  Congress 
in  the  government  of  the  Territories.  Congress  is  bound 
by  all  the  past  principles  and  practices  of  the  nation  to 
secure  all  people  subject  to  its  jurisdiction  against  un- 
reasonable searches  and  seizures ;  to  accord  the  right  to 
a  speedy  and  public  trial ;  to  prevent  excessive  bail ;  to 
prevent  the  establishment  by  state  authority  of  a  state 
church;  to  prevent  ex  post  facto  acts  and  bills  of  attain- 
der; to  prevent  slavery  except  in  punishment  for  crime, 
and  civil  discriminations  on  account  of  race  or  color. 
Congress  is  bound  to  defend  these  rights  for  the  people 
of  the  Territories,  not  because  the  people  there  can  claim 
privileges  under  the  Constitution  but  because  the  nation 
may  not  violate  the  fundamental  principles  on  which  the 
Constitution  was  made. 

"The  people  of  the  ceded  islands  have  acquired  a  moral 
right  to  be  treated  by  the  United  States  in  accordance  with  the 
underlying  principles  of  justice  and  freedom  which  we  have 
declared  in  our  Constitution,  and  which  are  the  essential  safe- 

1  Hamilton  vs.  St.  Louis  County  Court,  15  Missouri,  13,  cited  in  the 
American  Law  Revieiu,  January-February,  1901,  in  a  valuable  article  on 
"  The  Consent  of  the  Governed." 


The  Territories  and  their  Government  391 

guards  of  every  individual  against  the  powers  of  government, 
not  because  those  provisions  were  enacted  for  them,  but  be- 
cause they  are  essential  limitations  inherent  in  the  very  exist- 
ence of  the  American  Government."  ' 

' '  Doubtless  Congress,  in  legislating  for  the  Territories  would 
be  subject  to  those  fundamental  limitations  in  favor  of  personal 
rights  which  are  formulated  by  the  Constitution."  a 

The  new  decision  and  policy  with  reference  to  our 
island  possessions  may  mean,  then,  at  the  most,  only 
that  the  government  of  Congress  for  the  Terri-  The  Govem_ 
tories   is   a   government    under   an    unwritten    ment  for  the 

i       r  j  Island  Colo- 

constitution  instead  of  a  government  under  a  nies  fe  0ne  of 
written  Constitution.     To  say  that  the  islands  an  unwritten 

,    .  ,  ., ,     o  i.      u        Constitution. 

acquired  in  the  war  with  Spain  are  not  to  be 
regarded  as  a  part  of  the  United  States,  and  that  their 
inhabitants  are  not  citizens  of  this  country  protected  by 
the  provisions  of  our  Constitution, — this  is  not  to  say  that 
they  have  no  rights  recognized  by  our  Government ;  that 
they  are  not  entitled  to  trial  by  jury,  to  the  writ  of  habeas 
corpus,  to  representation  as  the  basis  of  taxation,  to  move 
and  speak  and  write  freely,  to  acquire  property  and  to 
make  contracts  and  to  have  these  contracts  enforced. 
These  rights  are  theirs  by  a  higher  law  than  that  of  the 
Constitution. 

As  to  the  application  of  the  Constitution  in  its  restric- 
tions and  limitations,  this  may  come  to  the  people  of  a 
ceded  territory  in  various  ways : 

i.  By  express  extension  of  the  Constitution  over  a 
Territory  by  specific  act  of  Congress. — The  Constitution 
does  not  extend  to  a  new  territory  by  its  own  How  Constitu. 
power  {ex propria  vigorc),  but  an  act  of  Congress  tionai  Rights 
is  necessary  to  make  it  apply.  An  issue  was  ""J^eeJ* 
raised  before  the  Supreme  Court  whether  a  cit-  i.  By  Act  of 
izen  of  the  District   of  Columbia  was  entitled 

1  Hon.  Elihu  Root,  Secretary  of  War,  Report,  1899. 

5  Justice  Bradley,  in  Mormon  Church  vs.  United  States.  136  U.  S.,  i.,  44. 


392  The  American  Republic 

to  the  provisions  of  the  Constitution  relating  to  trial  by 
jury.1     It  was  held  that  he  was  so  entitled.      But  this  was 

because  an  act  of  Congress,  February  21,  1871, 
fn'the^islrict  expressly  extended  the  Constitution  to  the 
of  Columbia:    District   of  Columbia  and  because,  also,  that 

District  had  been  carved  out  of  Maryland  and 
Virginia,  both  of  whose  Constitutions  guaranteed  this 
right  to  their  people.  When  Congress  by  specific  act  has 
once  extended  the  provisions  of  the  Constitution  over  a 
new  territory,  and  thus  fixed  its  constitutional  status, 
that  status  cannot  be  subsequently  changed  by  a  with- 
drawal of  the  Constitution.  As  the  Supreme  Court  has 
said,  there  are  some  steps  that  cannot  be  retraced. 

2.  By  the  organic  lazv  of  Congress  for  the  Territory; 
i.  e.,  the  Organizing  Act. — An  act  of  the  legislature  of 

2.  By  the  Iowa  dispensing  with  a  jury  in  certain  com- 
Territorial  Act.mon.iaw  actions  Was  held  void.2  But  this  was 
because  the  organic  law  of  the  Territory  of  Iowa,  the  Or- 
ganizing Act,  by  express  provision  extended  the  laws  of 
the  United  States,  including  the  Ordinance  of  1787,  over 
the  Territory.  This  Ordinance  provides  for  trial  by  jury. 
So  the  act  of  Iowa  was  void  because  of  its  conflict  with 
congressional  legislation,  which  had  made  certain  pre- 
liminary provisions  the  fundamental  law  of  the  State. 

3.  By  Treaty  Provisions. — In  order  to  modify  the  other- 

wise   unlimited  powers  of  Congress   over  the 

3.  By  Treaty.  territ;ory  acquired  by  treaty  it  has  been  deemed 
necessary  to  insert  limiting  provisions  in  the  treaties 
of  acquisition. 

In  all  the  territorial  treaties  save  that  relating  to 
Alaska  provision  has  been  made  that  the  territory  ac- 
Aii  Previously  quired  should  be  incorporated  into  the  Union 
ceded  Terri-  as  soon  as  possible,  and  that  in  the  meantime 
Incorporated  the  civil  rights  of  the  inhabitants  should  be 
into  the  Union  guaranteed.     In  the  Alaska  Treaty  with  Russia 

1  Callan  vs.  Wilson.  2  Webster  vs.  Reid,  2  Howard,  437. 


The  Territories  and  their  Government  393 

(1867)  no  provision  was  made  for  the  incorporation  of  the 
Territory  into  the  Union,  but  provision  was  made  that 
the  inhabitants  should  have  the  immunities  of  And  their  in- 
citizens  of  the  United  States  and  protection  in     habitants  to 

,  ......  ,  Have  the 

the  enjoyment  of  their  liberty,  property,  and  Rights  of 
religion.  Had  not  these  terms  been  made  in  the  Citizenship. 
treaties  the  territories  acquired  would  have  become  subject 
to  the  legislation  of  Congress  without  limitation.  The 
guarantees  to  the  people  are  the  guarantees  secured  by 
the  treaty.  In  the  case  of  territory  acquired  with  no  lim- 
itations upon  the  power  of  Congress,  its  power  is  abso- 
lute and  exclusive  except  in  so  far  as  it  is  limited  by  the 
Thirteenth  Amendment,  which  prohibits  slavery  in  any 
place  over  which  the  United  States  has  jurisdiction.1 
The  minority  view  of  the  Court  in  the  In-  „.      _„ 

J  Minority  View 

sular  cases  is  based  upon  two  fundamental  con-  in  the  insular 
tentions :  Cases- 

1.  The  term  "United  States"  used  in  the  revenue 
clause  of  the  Constitution  comprehends  the  Territories  as 
well  as  the  States. 

2.  The  National  Government  is  one  of  enumerated 
powers,  and  these  powers  cannot  be  increased  in  any 
part  of  the  Republic's  territory  or  within  its  jurisdiction, 
except  by  an  amendment  to  the  Constitution. 

As  to  what  the  term  "United  States"  means  in  the 
Constitution,  the  answer  was  given  by  Chief  Justice  Mar- 
shall, supported  by  the  entire  Court,  in  1820 : 

"  This  question  can  admit  of  but  one  answer.  It  is  the  name 
given  to  our  great  Republic  which  is  composed  of  States  and 
Territories.  The  District  of  Columbia  or  the  territory  west  of 
the  Missouri  is  not  less  within  the  United  States  than  Mary- 
land or  Pennsylvania,  and  it  is  not  less  necessary,  on  the  prin- 
ciples of  our  Constitution  that  uniformity  in  the  imposition  of 
imposts,  duties,  and  excises  should  be  observed  in  one  than  in 
the  other." 

1  House  Report,  249,  February  8,  1900,  56th  Congress,  1st  session. 


394  The  American  Republic 

As  to  whether  the  National  Government  can  exercise 
unrestricted  powers  in  the  Territories,  from  Marbury  vs. 
Madison  until  the  late  decisions  no  utterance  of  the  Court 
has  intimated  a  doubt  that  in  its  operation  the  National 
Government  is  one  of  enumerated  powers.  In  the  Dred 
Scott  case  the  antislavery  minority  agreed  with  the  pro- 
slavery  majority  that  the  power  to  legislate  respecting 
a  Territory  was  limited  by  the  restrictions  of  the  Con- 
stitution,— as  Justice  Curtis  expressed  it,  "by  the  ex- 
press prohibitions  on  Congress  not  to  do  certain  things." 
Justice  McLean,  though  asserting  the  power  of  Congress 
over  the  Territories  to  prohibit  slavery,  said,  "No  powers 
can  be  exercised  which  are  prohibited  by  the  Constitu- 
tion, or  which  are  contrary  to  its  spirit."  Associate 
Justice  Harlan  sets  forth  very  ably  the  view  of  the  min- 
ority : 

"  If  it  be  said  that  this  doctrine  restricts  the  sovereignty  of 
our  nation,  the  answer  is  that  the  sovereignty  of  the  nation 
under  our  system  resides  in  the  people,  the  Tenth 
Harlan's  Amendment  expressly  reserving  to  the  States  and 

Dissenting  the  people  all  powers  not  expressly  delegated  to  the 
National  Government.  If  the  government  of  dis- 
tant colonies  and  territories  unrestricted  by  the  Constitution 
seems  desirable  to  the  sovereign  power,  the  people  of  the 
United  States,  they  may  amend  the  Constitution,  but  those 
who  expound  it  can  do  nothing  so  absurd  or  mischievous  or 
repugnant  to  its  general  spirit  as  to  give  it  a  construction  not 
warranted  by  its  words. 

"  The  protection  of  a  written  Constitution  against  the  arbi- 
trary power  of  the  government  is  as  essential  to  the  unrepre- 
sented people  of  our  new  possessions  as  our  fathers  knew  it  to 
be  for  the  people  of  our  own  land. 

"  Congress  has  no  existence  and  can  exercise  no  authority 
outside  of  the  Constitution.  It  is  not  true  that  Congress  may 
deal  with  new  territory  just  as  other  nations  may.  This  nation 
is  under  the  control  of  a  written  Constitution,  the  supreme  law 


The  Territories  and  their  Government  395 

of  the  land.  This  is  the  only  source  of  the  powers  which  our 
government  or  any  branch  of  it  may  exert.  Monarchical  gov- 
ernments, unrestrained  by  written  Constitutions,  may  do  with 
newly  acquired  territories  what  this  government  may  not  do. 
To  say  otherwise  is  to  concede  that  Congress  may,  by  action 
taken  outside  of  the  Constitution,  engraft  upon  our  republican 
institutions  a  colonial  system  such  as  exists  under  monarchical 
governments.  Such  a  result  was  never  contemplated  by  the 
Fathers  of  the  Republic. 

"  The  Constitution  is  supreme  over  every  foot  of  territory 
under  the  jurisdiction  of  the  United  States.  Concessions  can- 
not be  made  for  emergencies.  We  cannot  violate  the  Constitu- 
tion in  order  to  serve  particular  interests.  The  meaning  of 
the  Constitution  cannot  depend  upon  accidental  circumstances 
arising  out  of  the  products  of  other  countries,  or  of  this  coun- 
try. The  ceded  territory  cannot  be  under  the  Constitution 
for  one  purpose  and  not  for  another.  The  people  who  ordained 
the  Constitution  never  supposed  that  a  change  would  be  made 
in  our  system  of  government  by  mere  judicial  interpretation. 
If  Porto  Rico  may  be  treated  as  though  not  a  part  of  the 
United  States  then  New  Mexico  and  Arizona  may  be  so  treated 
and  be  subjected  to  such  legislation  as  Congress  may  choose  to 
enact  without  any  reference  to  the  restrictions  of  the  Constitu- 
tion." 

Justice  Harlan  then  proceeds  to  consider  the  undefined 
process  by  which  a  people  are  to  be  incorporated  into  the 
political  community  known  as  the  United  States.  If  the 
treaty,  and  the  payment  of  the  money  agreed  to  and 
the  Foraker  Act  organizing  a  civil  government  for  Porto 
Rico,— if  these  steps  do  not  "incorporate  "  the  island  into 
the  United  States,  he  is  unable  to  see  how  it  can  be  done 
by  a  mere  resolution.' 

Judging  from  the  varying  opinions  of  the  judges  who 
agreed  in  the  judgment  of  the  Court  it  is  not  unreason- 
able to  suppose  that  this  decision  may  be  reversed  in  a 
1  Justice  Harlan,  dissenting  opinion  in  Porto  Rican  cases. 


396  The  American  Republic 

subsequent  case  and  that,  at  least  in  other  aspects  if  not 
in  this,  the  Constitution  may  be  made  to  apply  to  the  Ter- 
ritories in  restraint  of  congressional  power.  As  a  public 
policy  the  rule  here  indicated  may  be  at  any  time  reversed 
by  the  people.  It  is  not  certain  that  this  decision  is  to  be 
the  final  judgment  of  the  Court.  It  is  not  certain  that  in  the 
expansion  of  the  Republic  a  rule  has  been  established  to 
govern  for  all  time  to  come,  according  to  which, 
Government  although  new  territory  may  be  acquired,  the 
Marks  a  Republic  will  not  expand  with  its  principles  of 

Fundamental  ,  ,„      .         ,  ,    , 

Departure  in  government  but  will  simply  accumulate  posses- 
our  Political  sjons  and  colonies  to  be  governed  by  an  ex- 
ternal will  imposed  upon  them.  No  future 
course  is  certain.  It  is  only  the  past  that  is  secure.  But, 
judging  from  the  past,  no  one  can  doubt  that  in  the  law 
and  politics  so  recently  applied  in  the  government  of  dis- 
tant colonies  the  Republic  has  marked  a  great  departure. 
If  there  was  any  fundamental  principle  in  politics  for 
which  our  fathers  contended  in  the  American  Revolution  ; 
if  there  is  any  that  may  be  said  to  have  been  made  sacred 
by  the  struggles  of  American  history;  if  there  is  any 
principle  which  we  have  sought  for  a  century  to  apply  in 
the  government  of  States  and  Territories,  it  is  that  the 
rights,  liberties,  immunities,  and  constitutional  privileges 
of  the  citizen  abides  in  the  local  bodies,  Colonies  and 
States,  and  that  one  body  politic  should  not  have  unre- 
strained legislative  power  over  the  trade,  revenues,  prop- 
erty, lives,  and  liberties  of  another.  To  make  this  principle 
forever  sure  against  the  usurpations  of  government,  re- 
liance was  not  to  be  placed  merely  on  "certain  principles 
of  natural  justice  inherent  in  Anglo-Saxon  character," 
but  a  fundamental  law  defining  the  limits  of  government 
should  be  ordained  and  established  whose  limits  might 
not  be  transcended  by  governmental  agents.  If  the  ex- 
istence of  a  written  Constitution  cannot  save  us  from 
the  violation  of  this  principle  it  is  yet  to  be  seen  whether 


The  Territories  and  their  Government  397 

the  forces  described  as  the  unwritten  Constitution  will  be 
able  to  do  so.  History  has  illustrated  in  so  many  ways 
the  vital  importance  of  this  principle  that  it  is  safe  con- 
stantly to  remind  the  citizenship  of  America  that,  as  one 
of  our  own  prophets  has  said,  the  Republic  can  last  no 
longer  than  its  people  are  faithful  to  the  ideals  and  prin- 
ciples of  its  founders.1 

REFERENCES   ON   THE    GOVERNMENT   OF    THE 
TERRITORIES  AND  THE  COLONIES 

1.  Outlook,  Dec.  16,  1899,  "Our  Constitution  and  the  Colonies." 

2.  Outlook,  (a)  Feb.   10,   1900,  "  Our  Colonial  Responsibilities  "  ;  H.  G. 

Curtis  on  "Government  for  Our  New  Possessions"  ;  (6)  Feb.  3, 
1900,  "  Self-Government  in  the  Colonies  "  ;  (c)  Dec.  14, 1901,  "  The 
Supreme  Court  Decision  and  its  Consequences." 

3.  Report  of  Secretary  Root,  December,  1899. 

4.  Prof.  H.  P.  Judson,  Review  of  Reviews  for  April,  1900. 

5.  Majority  Report,  Committee  of  Ways  and  Means.   House  of  Repre- 

sentatives, Feb.  8,  1900  ;  Minority  Report,  House  Documents. 

6.  Speech  of  Hon.  Chas.   E.  Littlefield,  of  Maine,  in  House  of  Repre- 

sentatives, Dec.  17,  1901. 

7.  "  The  Insular  Cases,"  the  annual  address  of  Hon.  Chas.  E.  Littlefield 

before  the  American  Bar  Association,  Denver,  Colo.,  Aug.  22,  1901. 

8.  Speech  of  Hon.  Samuel  W.  McCall,  of  Massachusetts,  in  the  House  of 

Representatives,  Feb.  22,  1900. 
.  9.  American  Law  Review,  July-August,  1901,  pp.  597-617,  in  "  Notes  on 
Recent  Cases." 

10.  Decisions  of  the  Supreme  Court,   United  States  Supreme  Court  Re- 

ports, pp.  179-182,  Davis,  Reporter,  1901. 

11.  Bryce,  American  Commonwealth,  vol.  i.,  chap,  xlvii. 

12.  Current  History,  March,  April,  May,  1900. 

13.  Arena,  May,  1900. 

14.  Views  0/  an  Ex-President,  Benjamin   Harrison,  chap,   vii.,   "The 

Status  of  Annexed  Territory  and  of  its  Free  Civilized  Inhabitants." 

15.  Whitelaw  Reid,  Problems  0/  Expansion. 

1  James  Russell  Lowell. 


INDEX 


Abbott,  Lyman,  Rights  of  Man, 
19,  35;  on  government  by  con- 
sent, 25 
Absolute  Democracy,  57 
Absolutism,  theory  of,  26;    op- 
posed by  the  theory  of  gov- 
ernment by  consent,  27  sq. 
Adams,  John,  190,  191,  302 
Adams,  John  Quincy,  130,  186, 

239.  249 
Admiralty  Cases,  321 
Alaska,    362;     government    of, 

373 

Alaskan  Treaty,  162  sq.;   392 

"All  men  are  created  equal." 
See  Equality. 

Allen,  Grant,  on  evils  of  an  arti- 
ficial aristocracy,  39,  40 

Amendments,  to  United  States 
Constitution,  purpose  of,  79; 
first  ten,  84;  President's  as- 
sent unnecessary,  154;  sove- 
reign power  unlimited  in,  209; 
how  secured,  338;  to  State 
constitutions,  347 

"Anti-Nebraska  Men,"  308 

Appointing  power,  182.  See 
President. 

Apportionment  of  State  Sena- 
tors and  Representatives,  349 

Appropriations,  bills  for,  288; 
Committee  on,  290;  privi- 
leges of  Chairman,  290;  Ex- 
travagance of,  292;  Repre- 
sentative Cannon  on,  292; 
and  redress  of  grievances, 
308-310.     See  Money  bills. 


Aristocracy,  evils  of,  39,  42;  as 
a  form  of  government,  47,  49; 
distinguished  from  oligarchy, 

49.  5° 
Aristotle,  politics  of,  47,  48,  49, 

51 

Arizona,  362 

Austin,  Province  of  Jurispru- 
dence, on  a  Federal  and  a 
Confederate  State,  64 


B 


Bagehot,    on    Cabinet    Govern- 
ment, 280 
Bancroft,  George,  334 
Bank,  Second  United  States,  101 
Banks,  representative,  162 
Barron  vs.  Baltimore,  78,  79,  85 
Bates,  Attorney-General,  on  sus- 
pending Habeas  Corpus,  181 
Bayard,    manager    in    Blount's 

Case,  234 
Bayard-Chamberlain  Treaty,  166 
Belknap  Case,  233,  235,  239 
Benton,  Thos.  H.,  Thirty  Years' 

View,  153,  240 
Bicameral     system,     200;      his- 
torical basis  of,  201 
Bill  of  Attainder,  79,  85 
"Bill  of  Rights,"   78,   79;    pro- 
visions of,  84-85;    328 
Blackburn,  Representative,  310 
Blackstone,  Commentaries,  113 
Blaine,  James  G.,   128;    Twenty 
Years  of  Congress,    155,    164, 
189,216;     on  election  of  Sen- 
ators, 217,  218;    as  Speaker, 
278 


399 


400 


Index 


Blair  Educational  Bill,  274 

Bland,  Representative,  258;  261 

Blount,  Representative,  157 

Blount,  Senator,  impeachment 
of,  233 

B oilman  Case,  180 

Booth  vs.  Ableman,  321 

Boutwell,  The  Constitution  at 
the  End  of  the  First  Century, 
164 

British  Constitution,  rights  un- 
der, claimed  for  the  Colonies, 
3;  1  n;  112 

British  North  America  Act,  346 

Brown,  Justice,  decision  in  In- 
sular cases,  389 

Bryce,  James,  59,  60;  com- 
pares the  Confederation  and 
the  National  Government,  61, 
62,63,85,86,113;  on  Execu- 
tive veto,  150;  on  success  of 
American  Senate,  241-243;  on 
English  Speaker,  271;  on 
American  Committee  system, 
286,  287;   342  sqq. 

Buchanan,  on  Executive  inde- 
pendence, 102;  as  President, 
no;    154;    191;   ^33 

Buckle,  on  the  Declaration  of 
Independence,  10 

Bundesstaat,  63 

Bureaucracy,  51,  52 

Burgess,  J.  W.,  Political  Science, 

66>  133.  135.  J37.  x44.  37° 
Burke,  Edmund,  287 
Burrows,  Senator,  in  Quay  Case, 

198;  opposition  to  Bland  Bill, 

261 

C 

Cabinet,  the  American,  189 
sqq.;  in  early  administra- 
tions, 190,  191 ;  duties  of,  192; 
relation  to  President,  192,  193 

Cabinet,  English,  265.  See  Cab- 
inet Government. 

Cabinet  Government,  theory  of, 
96;  practice  of  97,  98,  99;  1 1 1 ; 
in  foreign  affairs,  169;  com- 
pared with  congressional,  279 
sq. 

Calhoun,  on  delegation  of  sove- 
reignty, 64;  185;  187;  357 

Cannon,  Hon.  J.  G.,  on  appro- 
priations, 292 


Carlisle,  Speaker  John  G.,  De- 
jects in  the  Election  of  the 
President,  127,  274 

Caucus,  unwritten  law  of,  93; 
222;  legislation  by,  266; 
committee  of,  281;  methods 
of  party,  299 

Causes  of  the  American  Revo- 
lution, 1  sq. 

Centralized  Republic,  55,  60 

Chadwick,  Capt.  F.  E.,  on  House 
Committee  system,  296,  297 

Chamber  of  Deputies,  French, 
250 

Charters,  rights  of  Colonies  un- 
der, 5 

Chase,  Chief  Justice,  331,  338, 
360 

Chase,  Judge,  impeachment  of, 
238 

Cherokee  Nation  vs.  Georgia, 372 

Chisholm  vs.  Georgia,  322 

Citizenship,  356  sqq.;  Four- 
teenth Amendment  and,  356; 
Calhoun  on,  357;  Dred  Scott 
decision  on,  357;  State  pro- 
tection of,  359;  Supreme 
Court  on,  359;  privileges  of 
national,  360 

Civil  rights,  guarantee  of,  389  sq. 

Classification  of  Powers,  80  sq. 

Clay,  Henry,  130;  opposes  Ex- 
ecutive veto,  151,  152;  as 
Speaker,  277 

Cleveland,  President,  128,  139; 
use  of  veto,  150;  175;  on 
Executive  Independence,  185; 
and  patronage,  187;  189;  228; 
230,  293 

Cloture,  in  Senate,  223;  in 
House,  262 

Colonial     Vssemblies,   rights  of, 

4,  5 
Colonial  government  and  Ameri- 
can principles,  396 
Colonies,  references  on,  397 
Committee  system,  by  unwritten 
law,  92;    in  House  of  Repre- 
sentatives, 279,  281  sqq.;   ad- 
vantages    of,     284     sq.;    dis- 
advantages    of,      286;       Mr. 
Bryce's  criticism  of,  286  sq. , 
293;    compared  with  English 
system,     287;      remedies    for 
abuses,  294  sqq. 


Index 


401 


Committees,  of  Congress,  Com- 
mittee of  the  Whole,  265,  272, 
281;  Caucus,  281;  special,  or 
select,  282;  standing,  282; 
sessions  of,  282,  291;  control 
of  House  over,  283;  House 
action  on  reports  of,  283;  ex- 
pert chairmen  of,  284;  on  Fi- 
nance, 287  sqq.;  on  Ways  and 
Means,  289;  need  of  con- 
certed action,  289;  on  Appro- 
priations, 290;  on  Rivers  and 
Harbors,  290,  293;  confer- 
ence, 293,  300;  proposed 
party  committees,  296;  Cap- 
tain Chadwick  on,  296;  "Steer- 
ing," 298 
Commons,   J.    R.,    proportional 

representation,  126 
Composite  State,  61,  63,  64 
Concurrent  powers,  81,  82,  83 
Concurrent  Resolution,  154,  155 
Confederation,   or    League,    de- 
fined, 61,  64,  65 
Confederation  of  1781,  94;  Con- 
gress of,  199 
Conference  Committee,  293,  300 
Congress  of  United  States,  pow- 
ers limited  and  representative, 
89,   90;    list  of  powers,   255; 
powers  denied  to,  256;    rela- 
tions to  the  Executive,  301; 
Executive     patronage,     304; 
how    it    may    influence    the 
President,  305  sqq.;  attempts 
to    subordinate    the    Execu- 
tive,  308  sqq.;  patronage  of, 
313. 
Congressional  government,  com- 
pared with  Cabinet,  279  sq. 
Conkling,  Senator,  229 
Connecticut  Compromise,  207 
"Consent  of  the  governed."    See 

Government  by  consent. 
Constitution,   definition   of,   90; 
written  and  unwritten,  90-91. 
See  Unwritten  Constitution. 
Constitution,  United  States,  dis- 
tribution of  powers  by,  72,  79; 
Jefferson's  view  of,  74;  meth- 
ods   of    changing,    338.     See 
State  constitutions. 
Constitutional  Convention,  sov- 
ereign power  of,  90 
Constitutional  Democracy,  58 
26 


Con  sti  tu  tion  al  go  vernm  en  t ,  right 
of  Colonies  asserted,  3;  how 
guaranteed  to  Island  Posses- 
sions, 391  sqq. 

Constitutional  law,  80,  163;  on 
relation  of  Executive  and  Ju- 
diciary, 104,  105,  108;  on  the 
scope  of  the  treaty  power, 
163,  164;  Constitutional  Limi- 
tations, 325,  345,  348 

Constitutional  limitations,  73sq., 
78,79,82,83 

Constitutional  statutes  in  Eng- 
land, 328 

Construction,  rule  of,  80;  dis- 
tinguished from  interpreta- 
tion, 339;  Marshall's  princi- 
ples of,  340;  Lincoln  on,  340. 
See  Implied  powers;  Strict 
construction. 

Contested  elections,  131;  Act 
regulating,  133 

Convention  of  1787,  200  sq. 

Cooley,  Thomas  M.,  rule  of  con- 
struction, 80 

Court  of  Claims,  319,  321 

Court-made  law,  336 

Courts,  Federal,  classes  of,  318, 
319  ;  jurisdiction  of,  320 
sqq.;  transfer  of  cases  from 
State,  320;  follow  State  de- 
cisions, 324;  power  to  declare 
an  act  unconstitutional,  325, 
330,  331;  inadvertent  nega- 
tive on  State  laws,  326; 
unique  supremacy  of,  328, 
337;    compared  to  European, 

329 
Crawford,  W.  H.,  and  the  "  Four 

Years'  Law,"  186 
Crisp,  Speaker,  261 
Crumpacker,  Representative,  on 

House  Rules,  260 
Curtis,    George     T.,    on    early 

American  Cabinets,  191 
Curtis,  George  William,  on  Civil 

Service  Reform,  186 


D 


Danish  West  Indies,  362,  378 

Davis,  Justice,  132 

Davis,    Senator,    and    Spanish 

treaty,  157 


402 


Index 


Declaration  of  Independence, 
3,  10;  preamble  of,  10-11; 
teachings  of,  11  sq.;  inter- 
pretation of,  12.  See  Gov- 
ernment by  consent. 

De  Lima  Case,  384 

Democracy,  as  a  form  of  govern- 
ment, 47,49,  50,57;  absolute, 
57;  constitutional,  58;  repre- 
sentative, 58;  Madison  on  fil- 
tration of,  59;  feared  in  1787, 
120 

Democratic  Republic,  56,  57,  58 

Despotism,  as  a  form  of  govern- 
ment, 48 

Dickinson,  John,  in  Convention 
of  1787,  206 

Dingley  Law,  379 

Diplomacy,  executive  character 
of,  168 

District  Attorney  of  the  United 
States,  325 

District  of  Columbia,  362 

District  plan  of  choosing  elec- 
tors, 124;  sustained  by  the 
courts,  124,  125,  126,  128; 
objection  to,  129 

Divine  Right  and  passive  obedi- 
ence, 14,  19  sq.;  24 

Dorr  Rebellion,  172  sq. 

Douglas,  Stephen  A.,  proposed 
constitutional  amendment, 
154,  220 

Dred  Scott  Case,  324,  357; 
Curtis' s  dissent  in,  358 

Dunning's  resolution,  112 


E 


Electoral     College,     117;      why 
adopted,  120;    failure  of,  121; 
reasons  for  failure,    122;   pre- 
cedent for,  123;    early  action 
of,     123  ;     district     plan    for 
choice     of,      124;       proposed 
changes   in,  125.     See    Presi- 
dential Electors. 
Electoral  Commission,  132,  277 
Eleventh  Amendment,  154,  322 
Elliot's  Debates,  233,  239 
Ellsworth      in     Convention     of 

1787,  206,  330 
Enabling  Act,  368,  370 
English  Commercial  Code.      See 
Trade  Laws. 


Equality,  doctrine  of,  announced 
in    Declaration    of    Indepen- 
dence, 11,  35  sq.;  doctrine  of, 
repudiated,   36,    37;    opposes 
special  privilege  and  a  ruling 
class,  38,  39;   John  Morley  on, 
40;  social  condition  leading  to 
the  assertion  of,  41,  42;    Lin- 
coln on,  43 
Ex  post  facto  law,  79,  85 
Executive,  single  or  plural,  114 
Executive,  under  Parliamentary 

government,  96 
Executive  departments,  189 
External  taxation,  7 


Federal   aspects   of  the  United 

States  Government,  67  sq. 
Federal  Republic,  55,  60,  61,  63, 

64,  65,  66,  73 
Federal      Government,      distin- 
guished from  National,  66  sq. 
Federal  system,  merits  of,  60,  80 
Federalist,  56,  169,  201,  212 
Fessenden,  Senator,  on  election 

of  Senators,  215,  216 
Field,  Justice,  325 
Fifteenth  Amendment,  246 
Fifth  Amendment,  79 
Filibustering,  in  the  Senate,  223; 

in  the  House,  261  sq.;    277 
Finance  Committee  of  Congress, 

287  sqq.     See  Committees. 
Follett,  Miss  M.  P.,  on  American 

Speaker,  271-279 
Foraker  Act,  379,  384 
Ford,  Paul  L.,  Federalist,  201, 

219,  312 
Forney,  John  W.,  252 
Foster  on  the  Constitution,  211, 

225,  228,  232,  233,  234,  235, 

237,  240,  241 
"Four  Years'  Law,"  185 
Fourteenth      Amendment,      85, 

248,  351,  356-  357.  358,  359 
Franklin,     Benjamin,    proposes 

suspensive  veto,  148;  201;  205 
Free  Assembly,  right  of,  6 
Free  Silver  Bill,  struggle  over,  in 

House,  258  sq.;    262  sq. 
French  Alliance,  170 
Fugitive  Slave  Law,  321 
Fuller,  Chief  Justice,  125 


Index 


403 


Furber,    Precedents    Relating    to 
the  Senate,  214,  227 


Gallatin,  Albert,  on  the  House 
and  the  Treaty  power,  159 
sqq.;   170 

Garrield,  President,  229 

Garrison,  W.  P.,  on  election  of 
Senators,  215,  218 

George  III.'s  attempt  to  restore 
personal  government,  result 
of,  29,  97,  112,  148 

Gerrymander,  125,  250 

Gohier,  Urbain,  on  evils  of  mili- 
tarism, 53-54 

Gordy,  Political  Parties,  383 

Government  by  the  consent  of 
the  governed,  11,  17-33;  Les- 
lie Stephen  on,  20;  the  goal  of 
civil  order,  24;  Lyman  Ab- 
bott on,  25;  Humboldt  on,  26; 
opposed  to  the  theory  of  ab- 
solutism, 26,  27;  affirms  the 
right  to  self-government  of  a 
capable  body  politic,  29,  30; 
Senator  Hoar  on,  30-31; 
principle  of,  pledged  in  Ter- 
ritorial Government,  31;  op- 
poses government  by  force, 
32 ;  taught  by  Thomas  Hook- 
er, 32;  390 

Government  for  the  benefit  of 
the  governed,  n;  16 

Government  Bill  in  England, 
97-98;  265;   in  America,  266 

Grant,  President,  115;  139,  156, 
165,  226,  309 

Greenback  decisions,  334 

Guarantee  Clause  of  the  Con- 
stitution, 172 


II 


Habeas  Corpus,  84,  177  s<7<7.,  321, 

364 

Hamilton,  on  concurrent  su- 
preme powers,  72;  on  im- 
plied powers,  75  sq.,  135;  145, 
148;  on  abrogation  of  trea- 
ties, 171;  on  power  of  re- 
moval, 184  sqq.;  192;  214; 
228;  303 

Hamlin,  I  lannibal,  155 


Hanoverian  kings,  1 1 1 

Harlan,  Justice,  dissenting 
opinion  in  Insular  Cases,  394 
sqq. 

Harrison,  President,  on  District 
Plan  of  choosing  Electors,  125; 
129, 157 

Hawaiian  Islands,  362 

Hayes,  President,  131;  on  war 
powers,  1S2;    309;   310 

Haynes,  Popular  Election  of 
Senators,  219 

Hill,  Senator,  230 

Hinsdale,  B.  A.,  American  Gov- 
ernment, 154,  155,  325,  340 

Hoar,  Senator,  on  senatorial 
courtesy,  227;  on  Belknap 
Case,  234 

Hollingsworth  vs.  Virginia,  154 

House,  Lolabel,  on  Twelfth 
Amendment,  119 

House  of  Representatives,  na- 
,  tional  character  of,  67;  par- 
ticipation in  treaty-making, 
159  sqq.;  constitution  of,  246; 
organization  of,  248;  vacan- 
cies in,  251;  sessions  of,  251; 
officers  of,  252;  clerk,  252; 
267,  268;  party  caucus  of, 
253;  minority  leader  in,  253; 
exclusive  rights  and  powers 
of,  256;  divisions  in,  257; 
rules  and  procedure,  257,  258; 
special  order  in,  258;  Com- 
mittee on  Rules,  258;  legisla- 
tive day  in,  261;  filibustering 
in,  261  sq. ;  calendar  of, 
261;  cloture  in,  262;  pre- 
vious question  in,  264;  how 
a  bill  is  passed  in,  264;  morn- 
ing hour  in,  264;  continuous 
sessions  of,  265;  Speaker 
Reed  on,  265;  Committer  of 
the  Whole,  265;  quorum  in, 
266 ;  struggle  in,  over  Speaker 
Reed's  decision  as  to  the 
quorum,  267  sqq.;  commit- 
tees, 281  sqq. ;  control  over 
committees,  283;  action  on 
committee  reports,  283;  lack 
of  responsibility  in,  296  sqq.; 
collisions  with  Senate,  300; 
power  over  the  purse,  307; 
employees  of,  313;  references 
on,  315 


404 


Index 


Humboldt  on  self-government, 
26 

Humphreys,  Judge,  impeach- 
ment of,  238 

Hunter,  R.  M.  T.,  Speaker,  249 


I 


Impeachment,  provisions  of  the 
Constitution  on,  231;  the 
Supreme  Court  and,  232;  of 
Blount,  233,  237;  of  Belknap, 
235;  of  Pickering,  237;  of 
Chase,  238;  of  Peck,  238;  of 
Humphreys,  238;  of  Presi- 
dent Johnson,  239;    scope  of, 

235;    3°6 
Imperative  Mandate,  348 
Implied  powers,  75,  77,  86 
Income  Tax  Decisions,  334 
Indian     Territory,      362,      371; 

tribal  relations  in,  371 
Initiative,  58 
Injunction  in   restraint  of    the 

Executive,  106 
Insular  Cases,  88,  378  sqq.; 
minority  view  of,  393  sqq. ,  397 
Island  Possessions,  constitu- 
tional status  of,  378  sqq. ; 
status  of  inhabitants,  383 


Jackson,  President,  on  Execu- 
tive independence,  101;  Bank 
veto,  101;  on  Worcester  vs. 
Georgia,  105;  115;  129;  130; 
138;  use  of  veto,  149,  152; 
removals,   185,  324 

James,  E.  J.,  Legal  Tender 
Cases,  334 

Jay,  John,  on  Law  of  Treaties, 
169,330 

Jay's  Treaty,  159  sqq. 

Jefferson,  on  strict  construction, 
74,  75;  on  the  power  of  the 
Judiciary,  99;  on  indepen- 
dence of  the  Executive,  100, 
10 1 ;  115;  on  the  Treaty 
power,  161  sq.;  on  abro- 
gation of  treaties,  171;  on 
suspending  Habeas  Corpus, 
180;  190;  192;  302;  313;  325; 
327  ;  opinion  of  Marshall,  328, 
383 


Jefferson's  Summary  View  of 
the  Rights  of  the  Colonies,  2 

Jenks,  Edward,  History  of  Pol- 
itics quoted,  61 

Jenks,  G.  A.,  on  Belknap  Case, 

233 

Johnson,  Dr.,  in  Convention  of 
1787,  207 

Johnson,  President  Andrew,  106; 
107;  use  of  veto,  150;  and 
Tenure  of  Office  Act,  187;  189; 
impeachment  of ,  197,  239,  309 

Joint  Resolution,  154,  155 

Judiciary  of  the  States,  354  sqq.; 
tenure  of,  354;  salaries  of, 
354;  popular  election  of,  355; 
scope  of  decisions,  355 

Judiciary  of  United  States, 
where  vested,  317;  tenure  of 
judges,  317;  under  the  Con- 
federation, 317;  increase  of 
power  to,  330;  may  not  sub- 
ordinate the  Legislature,  336. 
See  Supreme  Court;  Judiciary; 
Justices;  Courts. 

Judiciary  Act  of  1789,  318 

Jury,  right  of  trial  by,  5 ;  denied 
by  Admiralty  Courts  in  en- 
forcement of  Stamp  Act,  5; 
guaranteed    in    Constitution, 

84,  392 
Justices  of  United  States  Courts, 
creation  of,  318;    number  of, 
318;   how  removable,  318 

K 

Kasson,  reciprocity  treaties  of, 

168 
Kentucky  Resolutions,  75,  327 


Landon,  Constitutional  History, 
181 

League.     See  Confederation. 

Lecky,  W.  E.  H.,  cites  causes  of 
American  Revolution,  1 

Legal  Tender  Act,  338 

Legal  Tender  Cases,  88 

Legislative  Day,  262 

Lieber,  Civil  Liberty,  214 

Limitations  on  power  of  State 
and  Nation.  See  Constitu- 
tional limitations. 


Index 


405 


Lincoln,  on  Executive  Indepen- 
dence, 103;  on  Reconstruc- 
tion, 146,  154;  176;  220;  228; 
333;  construction  of  war 
powers,  340 

Lindsay,  Senator,  on  instruc- 
tions to  Senators,  240 

Livingston,  Edward,  159,  161 

Lobbying,  314,  315 

Local  Self-Government,  right  of 
Colonies  to,  asserted,  3,5 

Locke  and  Right  of  Revolution, 
15 

Lockwood,  H.  C,  Abolition  of 
the  Presidency,  152,  309 

Lodge,  Henry  Cabot,  on  "The 

Treaty-Making  Power,"  167, 
172 

"  Log-rolling,"  291 

Lords,  English  House  of,  196 

Louisiana,  admission  of,  382; 
territorial  government  of,  383 

Louisiana  Purchase,  88;  Treaty 
of,  162;  381 

Luther  vs.  Borden,  172,  174,  175 

M 

McConachie,  committee  system, 
281  sqq. 

McCulloch  vs.  Maryland,  101 

Maccunn,  Ethics  of  Citizenship, 
61 

McKee,  congressional  practice, 
155 

McKinley,  President,  and  Span- 
ish Treaty,  157;  176 

Maclay's  Journal,  211 

McPherson,  History  of  the  Rebel- 
lion, 180 

Madison,  definition  of  Republic, 
54,  56:  on  democracy,  59;  on 
character  of  the  Federal  Gov- 
ernment, 66;  in  case  of  Mar- 
bury,  100;  on  power  of  re- 
moval, 184  sqq.;  212;  213; 
228;  383 

Magna  Charta,  8;    27,  50,  328 

Mantle,  Lee,  case  of,  198 

Marbury  vs.   Madison,  99,    107, 

3.3°.  33i 

Marshal,  Federal,  324 

Marshall,  Chief  Justice,  on  pow- 
ers of  National  Government, 
77  ;  on  restrictions  of  the  Con- 


stitution, 78-79;  in  Barron 
vs.  Baltimore,  78-79;  in  Mar- 
bury  vs.  Madison,  100;  in 
Worcester  vs.  Georgia,  105; 
on  suspending  Habeas  Corpus, 
180;  secures  power  to  Judi- 
ciary, 330;  nationalizing  de- 
cisions of,  333;  principles  of 
construction,  340;  in  Chero- 
kee Nation  vs.  Georgia,  372 
Mason's   Veto  Power,   147,    153, 

i54.  i56 

Merryman  Case,  179 

Mexican  War,  158 

Michigan  plan  of  choosing  elec- 
tors.    See  District  plan. 

"  Midnight  Judges,"  100,  333 

Militarism,  52,  53 

Military  Republic,  55 

Milton,  defence  of  the  English 
people,  27  sq. 

Ministerial  and  executive  duties 
compared,  100,  107,  108 

Ministerial  government.  See 
Cabinet  and  Parliamentary 
Government. 

Mississippi  vs.  Johnson,  106,  107 

Mobocracy,  51 

Monarchy,  as  a  form  of  govern- 
ment, 47;   absolute,  48,  49 

Money  bills,  origin  of,  in  House, 
207;  English  and  American 
practice  on,  288 

Monroe- Pinkney  Treaty,  190 

Montesquieu,  113 

Morton,  Senator,  on  Disputed 
Elections  Act,  135 

Mutiny  Act  of  1765,  5 


N 


Nation  in  convention,  90 

National  aspects  of  the  United 
States  Government,  67  sq.,  73 

National  Government,  extent  of 
its  powers,  86,  87,  88;  char- 
acter of,  defined,  93;  right  to 
interfere  in  States,  174.  See 
Constitutional  limitations; 
National  Powers. 

National  Powers,  81;  delegated, 
82;  prohibitions  on,  84,  85, 
86;    judge  of  limits,  327 

Nationalists  in  Federal  Conven- 
tion of  1 7X7,  65 


406 


Index 


Neagle  Case,  143.  325 

Negative  on  State  laws,  326. 
See  Veto. 

Nelson,  Henry  Loomis,  A  Mis- 
take of  the  Fathers,  166,  167 

Nevada,  250 

New  Jersey,  election  contest 
(1839),  248 

New  Mexico,  362 

New  York  Assembly  dissolved,  5 

Niles's  Register,  153,  241 


0 


Ochlocracy.     See  Mobocracy. 
Oklahoma,  362 
Oligarchic  Republic,  55 
Oligarchy,  49,  50 
Olney-Pauncefote  Treaty,  166 
Ord,  Gen.  A.  O.  C,  106 
Ordinance  of  1787,  363,  392 


Parliament,  powers  sovereign 
and  constituent,  89;   308 

Parliamentary  Government,  95 

Parliamentary  Taxation  of  Am- 
erica, 1,  3 

Passive  Obedience  and  Divine 
Right,  14 

Paterson  of  New  Jersey,  on 
basis  of  Senate,  203 

Patronage,  Executive,  304; 
abuses  of,  314.  See  Presi- 
dent; Congress. 

Peck,  Judge,  impeachment  of, 
238 

Peel,  Sir  Robert,  271 

Pepke  Case,  379 

Petition  of  Right,  8 

Petition,  right  of,  6 

Philippines,  362,  376 

Pickering,  Judge,  impeachment 
of,  237 

Pinkney,  370 

Piatt,  Senator,  229 

Plutocracy,  49 

"  Pocket  Veto,"  146 

Polk,  President,  and  the  Treaty 
power,  156-158 

Porto  Rico,  362,  374 

Presidency,  federal  and  na- 
tional aspects  of,  67  sq. 


President,  unwritten  law  on,  92 ; 
lack  of,  under  the  Confedera- 
tion, 94;    created  by  the  Con- 
stitution of  1787,  94-95;    in~ 
dependent    of    Congress,    95, 
and     of     the    Judiciary,     99 
sq.;     independence     of,     sus- 
tained by  Jefferson,  99,   100, 
by  Jackson,  101,  by  Buchan- 
an, 102,  by  Sumner  and  Lin- 
coln,  103;    dependent  on  Ju- 
dicial    construction     of     the 
law,  in  view  of  Webster,  103, 
104;   Cooley  on  independence 
of,    104,   108;    bound  by  the 
law,    105;     may   not    be   re- 
strained by  injunction,    106; 
ministerial      and      executive 
duty  of,  compared,  107,   108; 
compared  with   English   Pre- 
mier, 109 ;  danger  from  his  in- 
dependence,   109;     length    of 
term,   115,   116;    ineligible  to 
third  term  by  unwritten  law, 
115;     mode   of   election,    115 
sq.;   patronage  of,   116;   time 
of    election,     117;      eventual 
election   of,    118;     defects   in 
electing,   127;  election  of,  by 
minority   vote,    129-130;     by 
House      of     Representatives, 
130;  contested  election  of,  131; 
qualifications  of,  135;    salary 
of,    136;     exempt   from   legal 
process,      136;      vacancy     in 
office    of,    140;     powers    and 
duties      classified,      142      sq.; 
executive   functions   of,    142; 
diplomatic  functions  of,   143; 
advisory    functions    of,     143; 
legislative  functions  of,    143; 
judicial  power  of,  144;  veto  of, 
144    sqq.;    pocket   veto,    146; 
in   foreign  relations,  156  sqq.; 
independence  in  treaty-mak- 
ing, 165;   the  guarantee  of  re- 
publican     government     and, 
172  sq.;    right  to  interfere  in 
State     disorders,     175;      war 
power  of,  143;  176  sqq.;   pow- 
er to  suspend   writ  of  habeas 
corpus,       179     sq.;     appoint- 
ing   power     of,    182;      power 
of     removal,     183;      growing 
powers  of,   187;    Cabinet,   1S9 


Index 


407 


President — Continued 

sq.;  references  on,  194,  195; 
relations  to  Congress,  301; 
how  he  may  influence  Con- 
gress, 302  sqq.;  message  of, 
302;  executive  patronage, 
304;  and  Legislative  "Rider," 
310 

Presidential  Electors,  must  vote 
for  party  candidates,  92; 
character  and  functions  of, 
121;  method  of  choosing,  124; 
qualifications  of,  125.  See 
Electoral  College. 

Presidential  Government  com- 
pared with  Parliamentary,  95 

Presidential  Succession  Act,  119, 
141  sq. 

Priggvs.  Pennsylvania,  323 

Principles  of  the  Republic,  Ch. I. ; 
the  constitutional  guarantees 
the  outgrowth  of,  43  sq.; 
references  on,  45,  46 

Proportional  Representation, 
126,  128 

Public  office  a  public  trust,  1 7 


Q 


Quartering  policy  of  Great  Brit- 
ain, 1,  2,  5 

Quay  case,  198 

Quorum,  struggle  over,  in  the 
House,  266  sqq.;  definition 
of,  266,  268;  Speaker  Reed's 
decision  on,  268  sqq.;  old 
rule  of,  269 


R 


Randall,  Speaker,  133;  resists 
obstruction,  277 

Randolph,  C.  F.,  Law  and  Policy 
of  Annexation,  89 

Randolph,  Edmund,  114 

"Randolph  Plan,"  94 

Reconstrtiction  Acts,  test  of, 
105-106 

Redistribution  of  seats,  Act  for, 
250 

Reed,  Speaker,  255,  265;  quo- 
rum decision  of,  268  sqq.;  296 

Referendum,  58,  111,  347,  348 

Reichstag,  250 

Removal,  power  of,  183  sqq. 


Representative  Democracy,  57, 

58 

Representatives  in  Congress.who 
may  vote  for,  246;  qualifica- 
tions of,  247;  apportionment 
of,  248;  ratio  to  population, 
250;  at  large,  250;  seating 
of,  254;  salary  of,  254;  tenure 
of,  254;  rotation  in,  255;  ex- 
empt from  arrest,  313 

Republic,  kinds  of,  55,  56; 
definition  of,  56,  59;  cen- 
tralized, 60;   Federal,  60 

Republican  Government,  de- 
fined, 54;  Madison  on,  54; 
constitutional  guarantee  of, 
54,  56,  172  sq.;    definition  of, 

S6'  57 
Republican  Party,  333 
Requisitions,  system  of,  7 
Resulting  powers,  76,  86 
Revolution   of    1688,    8;     Whig 
theory  of,    20;     rights  vindi- 
cated by,  20,  21 ;  Burke  on,  21 
Revolution,  right  of,  11;    Locke 
on,   15;    affirmed  in  Declara- 
tion of  Independence,  33,  34; 
conditions   justifying,  34-35; 
Bentham  on,  35 
"Riders,"  Legislative,  301,  307, 

308,  310 
Rights  of  Colonies  asserted,  to 
guarantees  of  the  British  Con- 
stitution, 3 
Rights  of  Men,  11;    14 
Roberts,   Brigham   H.,  case  of, 

247 
Roosevelt,  Theodore,  American 
Ideals,     139;      on    the    Vice- 
Presidency,  139,  140 
Root,  Secretary  Elihu,  392 
Rules,    House    Committee    on, 
258   sq.;    discussion    of,    and 
references  on,   260,  261,   262. 
See    Speaker    and     House  of 
Representatives 


Samoan  Islands,  362,  374 
San  I  )omingo  Treaty,  165 
S.I-,  ers,   Representative,  on  ex- 
travagant appropriations,  292 

Schoukr,  James,   History  of  the 
I  hiitid  States,  160 


4o8 


Index 


Schurman,  President,  376 

Self-Government.  See  Govern- 
ment by  consent. 

Senate,  French,  196 

Senate,  United  States,  federal 
character  of,  67,  20S;  as  part  of 
the  treaty-making  power,  456 
sqq.;  composition  of,  196; 
president  of,  196;  perman- 
ence of,  197;  vacancies  in, 
198;  origin  of,  199;  equal 
vs.  proportional  vote  in, 
202  sqq.,  209;  undemocratic, 
208;  advantages  of  equal 
representation  in,  210;  legis- 
lative function  of,  210;  ex- 
ecutive functions  of,  211; 
executive  session  of,  211; 
judicial  functions  of,  212;  as 
an  executive  council,  213; 
purposes  in  creating,  214;  and 
unwritten  constitution,  220; 
candidates'  methods,  222; 
cloture  in,  223;  filibustering 
in,  223;  rules  of,  225;  cour- 
tesy of,  225  sq. ;  dignity  of, 
230  ;  impeachment  before, 
231;  permanence  of ,  242;  sta- 
bility of,  242;  references  on, 
244 

Senators,  qualifications  of,  196; 
classes  of,  197;  method  of 
electing,  214  sqq.;  law  of 
1866,  214;  references  on 
method  of  electing,  219,  244; 
term  of,  239;    instruction  of, 

2,39 

Separation  of  governmental 
powers,  108  sq.;  why  estab- 
lished, 1 1 1  sqq. 

Septennial  Act,  89 

Seven  Years'  War,  result  of,  in 
America,  1 

Seward,  Secretary,  18 r,  309 

Sherman,  Roger,  idea  of  Federal 
Executive,  94,  98 

Sidgwick,  Elements  of  Politics,  50 

Sidney,  Algernon,  opposes  abso- 
lutism, 15 

Slaughterhouse  Cases,  359,  360 

Social  compact,  theory  of,  19  sq. 

Sovereignty,  in  Federal  govern- 
ment, 63,  64;  76;  distin- 
guished from  supremacy,  7 1 ; 
nature  of,  72 


Spectator,  London,  98;  on  the 
American  President,  109  sq. 

Speaker  of  House  of  Represen- 
tatives, how  chosen,  253; 
chairman  Committee  on 
Rules,  258  sq.;  vote  of,  261; 
importance  of ,  270;  of  English 
Commons,  270  sq.;  English 
and  American  compared,  271 
sq.;  sources  of  his  power,  271 
sqq.;  power  of  appointment, 
272;  power  of  recognition, 
273;  unwritten  law  on,  274; 
as  a  party  leader,  275;  one- 
man  power  of,  276;  limits  to 
power  of ,  276;  early  Speakers, 
277;  Clay,  277;  Winthrop, 
278;  Blaine,  278;  Giddings 
on,  278 

Spirit  of  Laws,  The,  113 

"Spoils  System,"  183 

Staatenbund,  63 

Stamp  Act  of  1765,  3;  enforced 
by  Admiralty  Courts,  5;  a 
direct  tax  without  representa- 
tion, 7;   Mr.  Lecky  on,  8  sq. 

Standing  Army,  colonial  oppo- 
sition to,  2 

Stan  wood,  History  of  the  Presi- 
dency, 135 

State  constitutions,  influence  of, 
on  United  States  Constitu- 
tion, 114;  origin  of,  343;  how 
made,  346 ;  method  of  amend- 
ing- 347 

State  Courts,  judge  of  national 
law,  336 

State  powers,  81;  original,  82, 
86;   prohibitions  on,  85 

States,  government  of,  342  sqq.; 
relative  importance  of,  342; 
functions  of,  342  sqq.;  limita- 
tions on,  344;  governmental 
departments  of,  345;  original 
powers  of,  346;  legislatures 
of,  348;  Senators  and  Repre- 
sentatives of,  348  sq.;  elec- 
toral districts  of,  349;  execu- 
tives, 352;  Governors' powers 
and  duties,  352  sq.;  Lieuten- 
ant-governors, 353;  judiciary, 
354;  imposing  conditions  on, 
369;  violation  of  terms  of  ad- 
mission, 370 

States'  Rights,  in  domestic  con- 


Index 


409 


States'  Rights — Continued 

cerns,  5;    controversy  on,  73; 
defined,  345 

States'  Rights  School,  333 

"  Steering  Committee,"  29S 

Stephen,  Leslie,  History  of  Eng- 
lish Thought,  20 

Stevens,  Sources  of  the  Constitu- 
tion, 147,  181  sq.,  191 

Stewart,  A.  T.,  226 

Stockton  Case,  215  sq. 

Strict  construction,  74  sq. 

Suffrage,  not  an  inherent  right, 
2  2  sq.;  regulated  by  State  law, 
350;  tests  for,  350;  "Grand- 
father" clause,  350;  and 
Fourteenth  Amendment,  351; 
woman's,  351 

Sulu  Islands,  375 

Sumner,  Charles,  on  Executive 
independence,  102  sq., ■  on 
Foreign  Affairs  Committee, 
157, 165;   228;   333 

Supreme  Court,  in  Barron  vs. 
Baltimore,  79 ;  in  Marbury  vs. 
Madison,  99;  in  McCulloch 
vs.  Maryland,  100;  decision 
binding  on  the  Executive,  103 
sq.;  on  the  quorum  in  the 
House,  269;  306  sq.;  size  of, 
318;  sessions  of,  319;  and 
politics,  332;  political  oppo- 
sition to,  333;  and  Greenback 
decisions,  334;  and  Income 
Tax  decisions,  334;  weak 
point  on  constitution  of,  335 ; 
how  cases  arise  in,  337  ;  refer- 
ences on,  341;  on  citizenship, 
359;  in  Slaughterhouse  cases, 
360;  in  Insular  cases,  378  sqq., 
384  sqq. 
Suspension  of  Colonial  Legisla- 
tures, 5 
"Sweeping  Clause"  of  Constitu- 
tion, 74 


Taft,  William  H.,  376 

Taney,  Chief-Justice,  on  Merry- 
man  Case,  179,  357,  358 

Tariff  of  Abominations,  240 

Taxation,  without  representa- 
tion,    7;      the    old    constitu- 


tional system  of,  7 ;  American 
contention  confirmed  by  Eng- 
lish precedents,  8-9;  Con- 
tinental Congress  on,  9; 
American  maxim  on,  deduced 
from  experience,  10 

Tenth  Amendment,  74 

Tenure  of  Office  Act,  106,  187; 
unconstitutionality  of,  188 

Territories,  delegates  in  Con- 
gress, 251;  organized,  362; 
Organizing  Act  for,  362;  an- 
ticipate statehood,  364;  gov- 
ernment of,  365;  Executives 
of,  365;  legislatures  of,  366; 
judiciary  of,  367;  how  ad- 
mitted as  States,  368;  taxa- 
tion in,  371;  unorganized, 
371;  foreign  and  domestic, 
378;   references,  397 

Texas  vs.  White,  73 

Thayer's  Cases,  180 

Theocracy,  51 

"Third  House,"  314,  315 

Thirteenth  Amendment,  154, 
368 

Three-fifths  compromise,  205 

Tiedemann,  Unwritten  Constitu- 
tion, 87;  on  distribution  of 
powers,  88 

Tilden,  S.  J.,  131,  133,  135 

Trade  Laws  of  Britain,  as  a 
cause  of  the  American  Revo- 
lution, 1,  2;  enacted  for  com- 
mercial, not  for  revenue  pur- 
poses, 7 

Transportation  Act,  6;  Burke 
on,  6 

Treasury,  Secretary  of,  and 
House  Committees,  288, 
289 

Treaty  Law,  scope  of,  164,  169; 
abrogation  of,  170,  171.  See 
Treaty-making  power. 

Treaty-making  power,  156  sqq.; 
need  of  unity  and  harmony  in, 
158;  participation  of  House 
in,  159;  paralysis  of,  167; 
Senator  Lodge  on,  167 

Tully,  Speaker,  271 

Twelfth  Amendment,  117,  119 

Tyler,  President,  Bank  veto,  102 ; 
138;  use  of  veto,  152;   240 

Tyranny.     See  Despotism. 

Tyrant,  48 


4io 


Index 


u 


Unconstitutional  Act,  status  of, 
325 

Unwritten  Constitution,  86,  87, 
88,  91,  92;  laws  of,  in  Am- 
erica, 92-93;   122;   274;   391 

Utah,  admission  of,  370 


V 


Veto,  Executive,  144  sqq.;  in 
the  Colonies,  147;  Royal  use 
of,  147,  148;  and  the  Judi- 
ciary, 148;  how  used  by  the 
Presidents,  149;  written  con- 
stitutions and,  150;  Bryceon, 
150;  decline  of,  in  England, 
151;  Whig  opposition  to,  151; 
Clay  opposes  growth  of,  151, 
152;  proposals  to  limit,  153; 
constitutional  amendment 
and,  154;  may  the  President 
recall?  156;  Senate  and,  213; 
303 ;   of  a  section  of  a  bill,  311 

Vice-President,  final  choice  of, 
118;  functions  of,  137;  suc- 
ceeding to  the  presidency,  138; 
141,  271 

Von  Hoist,  Constitutional  Law, 
169,  370 

W 

Wade,  Senator,  146;  on  im- 
peachment of  Johnson,  197; 
309 

Wade- Davis  plan  of  Recon- 
struction, 146 


Walpole,  in,  112 

War    for    the    Union,    national 

character  of,  69 
War    Power   of   the    President, 

143.  34o 
Washburn,   C.    C,   on   Alaskan 

Treaty,  162 
Washington,    President,   use  of 
veto,  149;   in   treaty-making, 
156,     on   Jay's   Treaty,    159, 
161;   192;  228 
Ways    and    Means    Committee, 

289.  See  Committees. 
Webster,  on  concurrent  supreme 
powers,  72;  on  Execvitive  in- 
dependence, 103,  104,  105, 
108;  185;  187;  in  Tyler's  Cab- 
inet, 193;  201 
West,  H.  L.,  on  growing  powers 

of  President,  187 
Wharton,  State  Trials,  234 
Whigs,   138;    opposition  to  the 

veto,  153 
Whip,  in  English  Commons,  271, 

299 
White,  Justice,  379;    in  Insular 

Cases,  389 
White,  William  Allen,  on  Presi- 
dent Cleveland,   187 
Willoughby,  W.   W.,   Theory  of 

the  State,  63,  65,  66 
Wilson,  James,    114,    120,    123, 
135,  148;  on  basis  of  the  Sen- 
ate, 204 
Wilson,  Woodrow,  on  Congres- 
sional Committees,  296,  297 
Winthrop,  Speaker,  278 
Worcester  vs.  Georgia,  105 
Written    Constitution     defined, 
90,  91,  92 


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Limited  to  750  sets.     A  few  sets  still  remain  for  sale. 

5.  Thomas  Jefferson.     The  Writings  of  Thomas  Jefferson. 

Comprising  his  Public  Papers  and  his   Private  Correspondence, 
including  numerous  letters  and  documents  now  for  the  first  time 
printed.      Edited  by  Paul  Leicester  Ford.      10  vols. 
Limited  to  750  sets.     A  few  sets  still  remain  for  sale. 

6.  Rufus  King.   The  Life  and  Correspondence  of  Rufus  King. 

Comprising  his  Letters,  Private  and  Official,  his  Public  Docu- 
ments, and  his  Speeches.  Edited  by  his  grandson,  Charles  R. 
King,  M.D.     6  vols. 

Limited  to  750  sets.     Now  complete. 


O.  P.  PUTNAM'S  SONS,  New  York  and  London 


AMERICAN  HISTORY 

7.  James  Monroe.     The  Works  of  James  Monroe.     Edited  by 

S.  Hamilton,  of  the  Department  of  State.     To  be  completed  in 

six  or  seven  volumes. 

Limited  to  750  sets.     In  course  0/ publication.     Volume  6  in  press. 

8.  James  Madison.   The  Writings  of  James  Madison.   Edited 

by  Gaillard  Hunt.      To  be  completed  in  eight  or  nine  rolumes. 
Limited  to  750  sets.     In  course  0/ publication.     Volume  3  in  press. 

9.  Samuel  Adams.      The  Works  of  Samuel  Adams.      Edited 

by  Harry  Alonzo  Cushing.     4  vols.     (In  preparation.) 

10.  John  Marshall.  The  Constitutional  Decisions  of  John 
Marshall.  Edited,  with  an  Introductory  Essay,  by  John  G. 
Palfrey,  of  the  Massachusetts  Bar.     (In  preparation.) 


OTHER  IMPORTANT  WORKS  IN  AMERICAN 
HISTORY 

The  Life  and  Correspondence  of  George  Mason  of  Virginia. 

Edited  by  Kate  Mason  Rowland.  With  an  Introduction  by 
Gen.  Fitzhugh  Lee.  With  portrait  of  Mason  and  facsimile  of 
the  Bill  of  Rights.     2  vols.,  8°,  net,  $8.00. 

The  Life  of  Charles  Carroll  of  Carrollton.  With  his  Letters 
and  Public  Papers.  By  Kate  Mason  Rowland.  2  vols.,  illus- 
trated, 8°.     Per  set,  net,  $6.00. 

The  Writings  of  Thomas  Paine.  Political,  Sociological,  Re- 
ligious, and  Literary.  Collected,  edited,  and  chronologically  ar- 
ranged by  Moncure  Daniel  Conway.  4  vols.,  8°,  half  leather, 
gilt  tops.     Per  volume,  $4.00. 

In  this  style  limited  to  150  numbered  copies.     A  Iso  issued  in  cloth  at  $2.50 
per  volume. 

Popular  Edition.  With  Introduction  and  Notes.  I.  Rights 
of  Man.  Part  I.  Being  a  reply  to  Mr.  Burke's  attack  on  the 
French  Revolution.    With  frontispiece,  8°.     $1.00. 

II.  The  Age  of  Reason.     Being  an  Investigation  of  True 

and  Fabulous  Theology.     8°.     $1.25. 

The  Life  of  Thomas  Paine.  By  Moncure  Daniel  Conway.  2 
vols.,  8° ,  illustrated.     Pp.  xviii.  +380  +  489.     $5.00. 

The  Thirteen  Colonies.  By  Helen  Ainslie  Smith.  Author  of 
"  One  Hundred  Famous  Americans,"  etc.  (Nos.  60  and  61  in 
the  "Story  of  the  Nations"  Series.  Two  vols.,  120,  fully  il- 
lustrated.    Cloth,  each,  $1.50.     Half  leather,  each,  $1.75. 


O.  P.  PUTNAM'S  SONS,  New  York  and  London 


AMERICAN  HISTORY 

The  United  States.  Being  a  History  of  the  Country  from  Colo- 
nial Days  to  the  present  Time.  By  Edwin  Earle  Sparks,  Ph.D., 
of  Chicago  University.  (Nos.  —  and  —  in  the  "  Story  of  the 
Nations"  Series.)  Two  vols.,  12°,  fully  illustrated.  Cloth, 
each,  $1.50.     Half  leather,  each,  $1.75.     (In  press.) 

The  Winning  of  the  West.     By  Theodore  Roosevelt.     Author 
of  "Hunting  Trips  of  a  Ranchman,"  "The  Wilderness  Hun- 
ter," etc.     4  vols.,  octavo,  gilt  top,  with  maps,  each,  $2.50. 
Vol.  \.     From  the  Alleghanies  to  the  Mississippi,  1760-1776. 
Vol.  II.    From  the  Alleghanies  to  the  Mississippi,  1777- 1783. 
Vol.  III.  The    Founding   of    the    Trans- Alleghany    Commonwealths, 

1 784- 1 790. 
Vol.  IV.    Louisiana  and  the  Northwest,  1701-1807. 

The  Naval  War  of  1812 ;  or,  The  History  of  the  United  States 
Navy  during  the   Last  War  with  Great   Britain.      By 

Theodore  Roosevelt.     8th  edition.     With  diagrams.      8°,  pp. 
xxxviii.-|-53i.      $2.50. 

The  Story  of  the  Civil  War.  A  Concise  Account  of  the  War  in 
the  United  States  of  America  between  1861  and  1865.  By  John 
Codman  Ropes,  author  of  "  The  First  Napoleon,"  "  The  Cam- 
paign of  Waterloo,"  etc.  To  be  complete  in  four  parts,  with 
comprehensive  maps  and  battle  plans. 

Part  I.  Narrative  of  Events  to  the  Opening  of  the 
Campaign  of  1862.     With  5  maps.     8°.     $1.50. 

Part  II.  The  Campaigns  of  1862.  Withi3maps.  8°.  $2.50 

American  Orations.      From  the  Colonial  Period  to  the  Present 
Time.     Selected  as  specimens  of  eloquence,  and  with  special 
reference  to  their  value  in  throwing  light  upon  the  more  im- 
portant epochs  and  issues  of  American  history.     Edited,  with 
introduction  and  notes,  by  the  late  Alexander  Johnston,  Profes- 
sor of  Jurisprudence  in  the  College  of  New  Jersey.     Re-edited, 
with  new  material  and  historical  notes,  by  James  A.  Woodburn, 
Professor  of  American  History  and  Politics  in  Indiana  Univers- 
ity.   Four  volumes,  each  complete  in  itself,  and  sold  separately. 
12°,  gilt  top,  per  volume,  $1.25. 
Vol.  I:    Colonialism— Constitutional  Government — The  Rise  of  De- 
mocracy—The   Rise    of    Nationality.     Vol.  II:    The   Anti-Slavery 
Struggle.     Vol.  Ill:  The  Anti-Slavery  Struggle  (continued) — Seces- 
sion and  Civil  War.     Vol.  IV:    Reconstruction — Free  Trade  and 
Protection — Finance — Civil  Service  Reform. 

Constitutional  History  of  the  United  States  as  Seen  in  the 
Development  of  American  Law.  Comprising  a  Course  of 
Lectures  Delivered  before  the  Political  Science  Association  of 
the  University  of  Michigan,  with  an  Introduction  by  Prof.  Henry 
Wade  Rogers,  Dean  of  the  Law  School  of  the  University  of 
Michigan.     8°,  pp.  296.     $2.00. 

O.  P.  PUTNAM'S  SONS,  New  York  and  London 


AMERICAN  HISTORY 

Documents  Illustrative  of  American  History,  1606-1863. 

By   Howard  W.   Preston.     With  introduction  and  references. 
Second  and  cheaper  edition.     8°,  pp.  320.     $1.50. 

The  Federalist.  By  Alexander  Hamilton,  John  Jay,  and  James 
Madison.  A  Commentary  on  the  Constitution  of  the  United 
States.  Being  a  Collection  of  Essays  Written  in  Support  of  the 
Constitution  Agreed  upon  September  17,  1787,  by  the  Federal 
Convention.  Edited,  with  Introduction  and  Notes,  by  Henry 
Cabot  Lodge.     8°,  pp.  xlv.  +  586.     $1.50. 

Comparative  Administrative  Law.  An  analysis  of  the  Adminis- 
trative Systems,  National  and  Local,  of  the  United  States,  Eng- 
land, France,  and  Germany.  By  F.  J.  Goodnow,  Professor  of 
Administrative  Law  in  Columbia  College.  2  vols.,  8°,  cloth, 
each,  $2.50. 

Popular  Edition,     Two  vols  in  one.     8°,  net,  $3.00. 
Part  I.  Organization.     Part  II.  Legal  Relations. 

Great  Words  from  Great  Americans.     Comprising  the  Decla- 
ration of  Independence  ;  the  Constitution  of  the  United  States, 
etc.     With  an   Index  to  the  Constitution,   and  an  Appendix. 
With  portraits  of  Washington  and  Lincoln.     180,  pp.  207,   75c. 
Citizen's  Edition.     With  31  illustrations.     12°.     $1.50. 

Nullification  and  Secession  in  the  United  States.  A  History 
<ii  the  Six  Attempts  in  the  First  Century  of  the  Republic.  By 
Edward  Payson  Powell,  D.D.     8°.     $2.00. 

Omitted  Chapters  of  History  Disclosed  in  the  Life  and  Papers 
of  Edmund  Randolph.  By  Moncure  D.  Conway.  With 
portrait,  8°,  pp.  vi.  +401.     $3-00. 

The  Constitutional  History  and  Political  Development  of  the 
United  States.  An  Analytical  Study.  By  Simon  Sterne  (of 
the  New  York  Bar).  Fourth  edition,  revised,  with  additions. 
12°,  pp.  xx. +  361.     $1.25. 

The  Origin  of  Republican  Form  of  Government  in  the  United 
States  of  America.  By  Oscar  S.  Straus.  Second  edition,  re- 
vised and  enlarged.      12°,  net,  $1.25. 

The  Tariff  History  of  the  United  States.  By  Prof.  F.  W. 
Taussig.  Comprising  the  material  contained  in  "  Protection  to 
Young  Industries"  and  "History  of  the  Present  Tariff,"  to- 
gether with  revisions  and  additions  needed  to  complete  the  nar- 
rative down  to  1897.  12°,  pp.  vii-l-269.  Fourth  edition, 
revised  and  enlarged.     $1.25. 


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